Mayo v. Davidge — 4 N.Y.S. 77

Majority

p. 77

Mayo v. Davidge et al.

(Supreme Court, General Term, Second Department.

February 11, 1889.)

Headnote

Mortgages—Satisfaction—Evidence.

A mortgage was given by a husband and wife on the wife’s property, to secure any indebtedness that might arise from the husband to plaintiff on account of certain speculations. On a settlement of the accounts open at the time the mortgage was given, a balance of $500 was left due on the mortgage, but, on an account opened with other parties after the delivery of the mortgage, there was a balance of $600 admitted to be due from plaintiff to the husband on account of advances. Held, that the husband’s testimony that such advances were agreed to be applied in satisfaction of the mortgage, being credible and corroborated by the circumstances, was sufficient to sustain a finding that the mortgage was fully satisfied. Following 1 N. Y. Supp. 792 .

p. 78

Appeal from special term, Kings county.

Dor the evidence given on a former trial of this case, which is substantially the same as that given on the second trial, and on which the judgment now appealed from was rendered, see the opinion of the general term on a former appeal, reported in 1 RT. Y. Supp. 792.

Argued before Dykman and Pratt, JJ.

H. S. Snow, for appellant. F. O. Oantine, for respondents.

This is an action for the foreclosure of a mortgage. The complaint is in the usual form, and the defendants came in with an answer, which required a trial, and a trial was had, and the trial judge made the following findings: The mortgage mentioned in the complaint was delivered Aprii 11,1888, and was given to secure the payment of any sum which should thereafter become due from Robert 0. Davidge to the plaintiff for moneys which the plaintiffs should thereafter advance for the account of said Robert * G. Davidge in speculative transactions in which the plaintiff and said Robert C. Davidge were then engaged; and, after the delivery of said bond and mortgage, the plaintiff advanced no money for the account of said Robert C. Davidge in said transactions. That before the commencement of this action all the indebtedness due from the defendants, or either of them, to the plaintiff, upon said bond and mortgage, was fully paid and discharged. As a conclusion of law, the judge found that the defendands were entitled to a judgment for the cancellation of the mortgage, and for discharging the same from the records, with costs. Judgment was then entered in accordance with such decision, and the plaintiff has appealed therefrom. The conclusion of the trial judge was reached through some contradictory testimony, but we think the findings are supported. He took the same view of the ease which we took when the ease was before us on appeal, and the whole transaction seems to be harmonized by the finding and decision. The judgment should be affirmed, with costs. All concur.