McDonnell v. McCoun — 127 A.D. 302

Majority

p. 302

James F. McDonnell and Others, as Executors, etc., of Peter McDonnell, Deceased, Respondents, v. Henry T. McCoun and Others, Defendants, Impleaded with Riverside Bank, Appellant.

Second Department,

June 18, 1908.

Headnote

Trialexclusion of evidence — basing right to evidence upon improper ground.

Although the defendant' in a suit to foreclose a conveyance of real estate as a mortgage is entitled to cross.-examine plaintiff’s witness as to the amount due, he cannot complain that the court sustained an objection to his questions, if he claimed only that the examination had reference to a defense of fraud which was not available because of a failure to serve the answer on the defendant mortgagors.

Appeal by the defendant, Eiverside Bank, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 14th day of May,. 1907, upon the report of a referee. ■ . -

Peter McDonnell, the original • plaintiff, having died pending the . .appeal herein, the present plaintiffs were substituted pursuant to an order made on the 4th day of October,-1907..

p. 303

Ralph J. Hawkins, for the appellant.

David McClure, for the respondents.

This - is a suit to foreclose a deed of conveyance of real estate to the plaintiff as a mortgage. The appellant, the defendant Diver-side Bank, answered with a general denial and a defence showing that it was a judgment creditor and alleging that the mortgage was made to hinder, delay and defraud creditors of the defendant mortgagors. The plaintiff formally proved the amount of the indebtedness for which the mortgage was made by an instrument dehors between the parties thereto, and then proved by a witness that the amount was • unpaid. On the appellant’s counsel proceeding to cross-examine this witness, counsel for the plaintiff objected that it could give no evidence on its defence of fraud and to set aside the conveyance unless it had served its answer on the defendant mortgagors, and the objection was sustained. However this may be it was competent to examine or cross-examine the witness in respect of the' amount due; but counsel for the appellant did not claim that this was his purpose, but on the contrary only that the examination had reference to the said defence; and subsequently he announced to the court that he no longer attacked the validity of the mortgage, which removed all question of the.examination on that head. When counsel for the plaintiff disclosed by his objection that he supposed from the nature of the question asked that the examination was only to establish the defence of fraud, counsel for appellant should have disclosed that it was also on the question of the amount due, assuming there was no fraud. The court did not have its attention directed to that point, but was diverted from it by the objection and the discussion thereof.

The judgment should, be affirmed.

Woodward, Jenks, Hooker and Miller, JJ., concurred.

Judgment affirmed, with costs.