sion was granted, and thus determined that the plaintiff was entitled to be released only to the extent of $2,312.50, which is, in effect, applying on the first mortgage the payment made on the second, although the premises must be sold subject to the first mortgage, thus increased $3,000 over the amount secured thereby when appellant executed the bond and second mortgage. After the case was submitted the trial court handed down a memorandum opinion, holding that the value of the premises at the time the extension was granted had not been shown, and awarding the foreclosure judgment. Appellant then employed other attorneys who promptly moved to open the case to supply further evidence on that point, and presented an appraisal by a wellknown expert, showing that the premises were, at the time the extension was granted, adequate security for both mortgages before the amount of the first was increased with the consent of the plaintiff, and asked that the answer be amended by specifically alleging such value. If the amendment and proof were necessary to appellant's defense, the motion should have been granted. I, therefore, vote to reverse both judgment and order. (83 Misc. Rep. 439) WIGGINS v. ESTATE OF CHARLES E. CODDINGTON. (Supreme Court, Appellate Term, First Department. December 30, 1913.) 1. BROKERS (§ 61*)-CONTRACT-MISREPRESENTATION BY OWNER. It is a broker's duty to inquire as to terms of sale and as to matters affecting the general character of the property, and the owner is not bound to inform the broker of encroachments, unless he is asked about them; and it is not misrepresentation, either willful or inadvertent, for him to remain mute when not asked. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 77, 78, 92, 93; Dec. Dig. § 61.*] 2. BROKERS (8 52*)-COMPENSATION-SUFFICIENCY OF SERVICES. Where an owner had a good marketable title to realty and its appurtenances, which he offered to sell without agreement as to terms, except the price, the broker was not entitled to his commission until he produced a purchaser who agreed with the owner, not only upon the price, but upon the essential terms of an agreement to purchase. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 73; Dec. Dig. § 52.*] Appeal from City Court of New York, Trial Term. Action by Frank E. Wiggins against the Estate of Charles E. Coddington, a corporation. From a judgment in favor of plaintiff for $841.30, besides costs, entered on a verdict, defendant appeals. Reversed, and complaint dismissed. Argued December term, 1913, before SEABURY, GUY, and BIJUR, JJ. Jones & Carleton, of New York City (E. Powis Jones, of New York City, of counsel), for appellant. Robert D. Borroughs (Charles Trosk, of counsel), for respondent. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes GUY, J. This action was brought to recover broker's commissions for procuring a purchaser for real property belonging to defendant. The defense was a general denial. Plaintiff solicited of defendant's counsel an opportunity to sell the property, which defendant agreed to, fixing the price at $75,000. Several offers of purchasers at a less price and on unsatisfactory terms were presented by plaintiff and rejected. During all these negotiations nothing was said about encroachments. Plaintiff asked defendant to reduce the price to $68,000, and asked for a memorandum of sale at that amount to show to a prospective purchaser. Defendant prepared and gave to plaintiff such a memorandum, showing encroachments by a neighboring building to the extent of 51⁄2 inches at one point. Plaintiff's proposed purchaser refused to purchase solely because of the encroachments as shown by the memorandum. Plaintiff claims that he produced a purchaser ready and willing to purchase defendant's property on the terms previously fixed by defendant, which did not refer to encroachments. [1] The court charged in effect that mere silence as to the encroachments, on the part of the prospective seller, might be a misrepresentation, and charged that the jury "may infer willful misrepresentation by silence." In this the learned trial court erred. The broker is an expert in such matters, and it is his duty to inquire as to terms of sale and as to matters affecting the general character of the property. There is no duty on the part of a real estate owner to inform a broker of encroachments, unless he is asked about them. It is not misrepresentation, either willful or inadvertent, for him to remain mute, when he is not asked, and when he is under no duty to volunteer or speak. Ranger v. Lee, 66 Misc. Rep. 144, 146, 147; 121 N. Y. Supp. 328; Weibler v. Cook, 77 App. Div. 637, 78 N. Y. Supp. 1029; Levy v. Sonneborn, 78 Misc. Rep. 50-52, 138 N. Y. Supp. 285; Keough v. Meyer, 127 App. Div. 273, 274, 111 N. Y. Supp. 1; Hausman v. Herdtfelder, 81 App. Div. 46-48, 80 N. Y. Supp. 1039; Diamond & Co. v. Hartley, 47 App. Div. 1, 3, 4, 61 N. Y. Supp. 1022; Id., 38 App. Div. 87, 92, 55 N. Y. Supp. 994; Curtiss v. Mott, 90 Hun, 439, 35 N. Y. Supp. 983, appeal dismissed 158 N. Y. 663, 52 N. E. 1124. [2] So far as appears, the defendant had a good, marketable title to the realty and its appurtenances, which he offered to sell. No terms but the price had been determined before the delivery to plaintiff of the memorandum of sale. The plaintiff broker was not entitled, under such circumstances, to his commission until he produced a purchaser who reached an agreement with the owner upon the price and terms upon which a sale could be made, or until the minds of the owner and proposed purchaser met, not only upon the price, but upon the essential terms of an agreement to purchase. Arnold v. Schmeidler, 144 App. Div. 420, 427, 129 N. Y. Supp. 408. The plaintiff failed to produce such a purchaser, and has not made out a cause of action. The judgment must be reversed, with costs, and the complaint dismissed, with costs. All concur. (160 App. Div. 315) SECURITY BANK OF NEW YORK v. FINKELSTEIN. (Supreme Court, Appellate Division, First Department. December 31, 1913.) 1. LIMITATION OF ACTIONS (§ 163*)-PART PAYMENT-EFFECT. A payment of either principal or interest, made by a debtor, gives rise to an implied promise, or justifies an inference of a new promise on his part at that time, in the absence of evidence showing that he disclaimed the intent to have his act given that effect, to pay the balance of the indebtedness, and limitations commence to run from that time on the new promise. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 642-647; Dec. Dig. § 163.*] 2. LIMITATION OF ACTIONS (§ 155*)-PART PAYMENT-BY WHOM MADE. To prevent the running of limitations, a part payment, if not made by the debtor, who pleads the statute, must be made by his agent, clothed with sufficient authority to disclaim for him any intention to have the effect given the payment which, by legal inference or presumption, would otherwise attach thereto, and who fails to so disclaim, or the payment must be ratified by the debtor. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 623-630; Dec. Dig. § 155.*] 3. LIMITATION OF ACTIONS (§ 155*)-PART PAYMENT-BY WHOM MADE. Where the maker of a note assigned as collateral security for its payment a deposit in an insolvent bank, the receiver of such bank, in paying the dividends on such deposit to the holder of the note, was not the maker's agent; and hence such payments did not justify a presumption or inference that a new promise was then made by the maker to pay the balance owing on the note. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 623-630; Dec. Dig. § 155.*] 4. LIMITATION OF ACTIONS (§ 155*)-PART PAYMENT BY WHOM MADE. Where the maker of a note, as collateral security for its payment assigned his deposit in an insolvent bank with authority to the payee to collect and apply such deposit on the note, the payee, in receiving and applying dividends from the receiver of the bank, was not the agent of the maker, since it was acting in its own behalf, and it was not necessary to perform any act in the name of the maker; and hence such payments were not made by the maker's agent so as to justify the inference of a new promise to pay the debt. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 623-630; Dec. Dig. § 155.*] 5. LIMITATION OF ACTIONS (§ 155*)-PART PAYMENT-BY WHOM MADE. Where the maker of a note, who assigned his deposit in an insolvent bank as collateral security for its payment, with authority to the payee to collect and apply such deposit on the note, was not consulted by the payee respecting the appropriation of dividends on such deposit to the payment of the note, but was merely informed thereafter that the dividends had been received and so applied, his failure to protest against such application was not such a ratification thereof, as matter of law, as amounted to a new promise to pay the balance of the debt, since he had no standing to protest against the doing of that which the payee had a right to do, nor was he required to disclaim the effect on the statute of limitations of an act not performed by him; and hence the jury's finding that there was no ratification would not be disturbed. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 623-630; Dec. Dig. § 155.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes . 6. LIMITATION OF ACTIONS (§ 48*)-CONTRACTS-NEW OR SEVERABLE CONTRACT. A note recited that the maker had deposited with the payee as collateral security an assignment of moneys due or to become due from an insolvent bank, in which the maker had a deposit, or its receiver, with authority to the payee, without demand of payment, advertisement, or notice, to sell the whole or any part thereof at any broker's board or at public or private sale, and, after deducting all costs and expenses, to apply the residue on the note, and that the maker agreed to remain liable to the holder of the note for any deficiency. The assignment recited in the note assigned all money due or to grow due from such bank or its receiver, and gave the payee power to ask, collect, etc., such money or any part thereof, and provided that, if the amount paid by the bank or the receiver should not be sufficient to pay the amount of the note, the maker would pay any deficiency thus arising. Held, that neither in the note nor the assignment was there any such promise to pay the deficiency, separate and apart from the promise to pay the note, as would support an action brought after an action on the note was barred by limitations, but within six years after the amount of the deficiency was ascertained by the application on the note of the last dividend received from the receiver. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 259-265, 351; Dec. Dig. § 48.*] 7. PLEADING (§ 380*)-REVIEW-THEORY OF ACTION. Where the complaint in an action stated a cause of action on a note, the case was tried on that theory, there was no proof that no more could have been than was realized under an assignment of a bank deposit as collateral security, and it did not appear that there was not some other defense to an action on the assignment, the action could not be maintained as one on a promise in the assignment to pay any deficiency. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1053, 1054, 1070-1077; Dec. Dig. § 380.*] Ingraham, P. J., and Hotchkiss, J., dissenting. Appeal from Appellate Term, First Department. Action by the Security Bank of New York against Herman Finkelstein. From a determination of the Appellate Term affirming a judgment on a verdict for defendant and an order denying a new trial, plaintiff appeals. Affirmed. See, also, 76 Misc. Rep. 461, 135 N. Y. Supp. 640; 156 App. Div. 939, 141 N. Y. Supp. 1145. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ. Morgan J. O'Brien, of New York City, for appellant. LAUGHLIN, J. This is an action on a promissory note made by the defendant on the 3d day of January, 1906, for $2,005.35, payable on demand to the order of the plaintiff under its former name, which was the Fourteenth Street Bank, with interest, to recover a balance of $375.67. The action was commenced on the 12th day of February, 1912. It is alleged that there were payments made to apply on the note as follows: January 8, 1906, $502.67, June 13, 1906, $751.34, and March 28, 1907, $375.67. The allegations with respect to these payments were put in issue by the answer in which the statute of limitations was also pleaded. The payments made, which were thus put in issue, were dividends received by the plaintiff from the receiver *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes of the Cooper Exchange Bank, under an assignment, as collateral security for the note, of defendant's claim against said bank as a depositor. The points presented by the appeal are whether either of these last two payments made on the note gave rise, by implication or presumption of law, to an implied promise on the part of the defendant to pay the balance, on which the statute of limitations would commence to run anew from that time, and whether plaintiff is entitled to recover on the theory of an agreement on the part of the defendant to pay the deficiency after the application of the amounts collected on the collateral security. It was a long-form collateral security note such as is in use by banks. It is therein recited that the maker has deposited with the bank, as collateral security for payment, an "assignment of moneys due or to become due from the Cooper Exchange Bank" or its receiver, with authority to the payee or its assigns without demand of payment, advertisement, or notice of sale, in the event of nonpayment, to sell the whole or any part thereof at any broker's board or at public or private sale, "and after deducting all costs and expenses for collection, sale and delivery to apply the residue of the proceeds of such sale, or sales, to pay any or all" of defendant's liabilities to the bank, and to return the surplus to the defendant. Immediately after the provisions authorizing the assignment or sale of the collateral, the note contains the following: "And the undersigned agrees to be and remain liable to the holder hereof, for any deficiency. It is further agreed that any moneys or property at any time in the possession of the said bank, on deposit or otherwise, belonging to or at the credit of any of the parties liable hereon to said bank, may at any time, at the option of said bank, be appropriated and applied as a payment on account of this note or the indebtedness evidenced hereby, and on account of any other indebtedness or liability of the parties hereto to said bank, whether this note or any such indebtedness is then due or not due." The assignment which it is recited in the note had been deposited with the plaintiff as security therefor was dated and acknowledged on the 14th day of November, 1905. It recites a consideration of $1 for which the defendant assigned to the plaintiff and to its successors and assigns "any and all sums of money now due or to grow due" upon his claim against the Cooper Exchange Bank or its receiver, amounting to $3,006.35, which accrued to him as a depositor, and that he gave to the plaintiff "full power and authority, for its own use and benefit," but at his expense, "to ask, demand, collect, receive, compound and give acquittance for the same, or any part thereof," and in his name "or otherwise to prosecute and withdraw any suits or proceedings at law or in equity therefor." It is further recited that the assignment is given as collateral security "for an advance or advances" made to the defendant by the plaintiff "on account of said claim or demand." It is further therein provided that "when the amount of said debt or claim shall have been collected" by the assignee, it should pay over to him the surplus "over and above the amount of any advance or advances with interest thereon" made by the assignee to him "on or on account of said claim or demand." The final sentence of the assignment provided that "if the amount paid by the Cooper |