Court of Appeals of New York.
Son Fong LUM, Appellant,v.Domenico ANTONELLI et al., Respondents,andThe Long Island Savings Bank, Appellant. (And Third-Party Actions.)(And Another Proceeding.)
May 2, 1985.
Plaintiff, who asserted that her signature on deed was forgery, brought action to have deeds and mortgages cancelled and to bar defendants from claiming interest in property thereunder. From judgment of the Supreme Court, Queens County, Howard E. Levitt, J., granting relief sought, defendants appealed. The Supreme Court, Appellate Division, 102 A.D.2d 258, 476 N.Y.S.2d 921, reversed and appeal was taken. The Court of Appeals held that: (1) plaintiff, who asserted that "X" mark on deed was not hers, failed to come forward with proof of nature required to rebut presumption of due execution arising from notary's certificate of acknowledgment, in light of testimony of five witnesses contradicting plaintiff's testimony that she was not present when deed was signed, and (2) mortgagee bank was not entitled to attorney fees from original or successor mortgagors.
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Plaintiff, who asserted that "X" mark on deed was not hers, failed to come forward with proof of nature required to rebut presumption of due execution arising from notary's certificate of acknowledgment, in light of testimony of five witnesses contradicting plaintiff's testimony that she was not present when deed was signed and fact that plaintiff changed address on official bank signature card one day after execution of deed.
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In action seeking to have deeds and mortgages cancelled, any liability for mortgagee bank's attorney fees original mortgagors might have had under original mortgage was discharged when mortgage was assumed, with an increased interest rate and term.
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In action seeking to set aside mortgages and deeds, mortgagee bank, which did not assert claim for attorney fees against successor mortgagor at trial, could not assert such claim on appeal. *1161 ***734 **348 Joseph Schutzman, Wantagh, for Son Fong Lum, appellant.
Matthew Dollinger, Carle Place, for The Long Island Savings Bank, appellant.
Samuel Kirschenbaum, Roslyn, for Domenico Antonelli, respondent.
Michael Permut, New York City, for Yee Woo Lum and another, respondents.
Richard T. Farrell, Brooklyn, for Alfonso Duarte, respondent.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs to defendants Domenico Antonelli, and Yee Woo Lum and Po Wah Lum (the "defendants Lum"), against plaintiff and defendant The Long Island Savings Bank.
 The weight of the evidence more nearly comports with the findings at the Appellate Division (102 A.D.2d 258, 476 N.Y.S.2d 921). We add only that there is no basis for recovery of attorneys' fees by the bank against the defendants Lum, or against defendant Antonelli. As to the defendants Lum, any such liability they might have had under the original mortgage was discharged when the mortgage was assumed, with an increased interest rate and term, by Antonelli (see, 38 NY Jur, Mortgages and Deeds of Trust, § 183). Nor can the bank now recover attorneys' fees against Antonelli, since it asserted no such claim against him below.
WACHTLER, C.J., and JASEN, MEYER, SIMONS, KAYE and ALEXANDER, JJ., concur in memorandum.
Order affirmed, etc.
490 N.Y.S.2d 733, 64 N.Y.2d 1158, 480 N.E.2d 347
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