Davenport v. Palmer — 211 N.Y. 596

Majority

p. 596

Henry J. Davenport, Respondent, v. Mary A. E. Palmer, Respondent, and Mary J. Mayne, Appellant, Impleaded with Another.

Headnote

Davenport v. Palmer, 152 App. Div. 761 , reversed.

(Argued May 13, 1914;

decided June 9, 1914.)

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 11,1912, reversing a judgment in.favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term, and granting a new trial in an action to reinstate a mortgage on real property, to cancel and annul the satisfaction piece thereof and to foreclose said mortgage.

Morris A. Hulett, Benjamin F. Norris and John T. Eno for appellant.

Clarence F. Corner for plaintiff, respondent.

Richard C. Addy for defendant, respondent.

The reversal being upon questions of law only (Code Civil Proceedure, section 1338), we are limited on this review to the consideration of the questions of law arising upon the findings of fact which there is any evidence to sustain. The Special Term found upon sufficient evidence that the plaintiff and his client, the mortgagee, accepted Mr. Dalton’s check in payment, satisfaction and discharge of the bond and mortgage. That finding disposes of the case irrespective of the effect of the certification of the check or of the subsequent recovery by the plaintiff of a judgment upon it.

The order of the Appellate Division should be reversed .and the judgment of the Special Term affirmed, with costs in all courts.

Willard Bartlett, Oh. J., Chase, Oollin, Cuddeback, Hogan, Miller and Cardozo, JJ., concur.

Ordered accordingly.