Emerle v. Varga

Triable issues are presented as to whether $6,000 was paid in consideration of the execution and delivery of the $6,000 mortgage and as to whether such payment was made in ignorance of the fact that the words “ in lieu thereof ” had been erroneously omitted in recording the mortgage for $14,500. If the $6,000 mortgage was accepted in good faith and for valuable consideration, without knowledge of the fact that the words “ in lieu thereof ” were contained in the original second mortgage, it would seem that the $6,000 mortgage would take precedence over the latter mortgage under the subordination clause. The motion is accordingly granted only to the extent of striking out the answers of the defendants George Varga and Helen Varga and striking out the names of “ Max Rosenfeld,” “ Margaret Marion,” and otherwise denied. Settle order.