Van Tassel v. Wood

Headnote

Where in an order of General Term, reversing a judgment entered upon a decision of the court on trial without a jury, it is not stated that the reversal was upon questions of fact, the reversal to be sustained in this court must be justified by some error of law, the opinion cannot be looked to to ascertain the ground of the reversal; if upon the facts, it must appear in the body of the order. (New Code, § 1338.)

This ivas an action to foreclose a mortgage. The defendant Wood, a subsequent incumbrancer, set up the defense of usury. The trial court found against this defense and granted the usual decree of foreclosure. The General Term, in effect, reversed the judgment, so far as Wood was concerned, i. e:, it modified the judgment by inserting a clause to the effect that Wood was entitled to a priority of lien over the mortgage.

It was not stated in the order of General Term that the reversal was upon questions of fact. Held, that the reversal here must be justified by some error of law (New Code, § 1338); that the alleged usury was not so conclusively established by undisputed evidence as to make the finding in favor of plaintiff an error of law ; and that, therefore, the judgment of the General Term could not be sustained.