Austin v. Rappelye — 45 N.Y. St. Rep. 489

Majority

p. 489

William Austin, Resp’t, v. James M. Rappelye, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed May 13, 1892.)

Headnote

1. Appeal—Findings on conflicting evidence.

Where there is a conflict in the evidence, the findings of fact of the special term will not he disturbed on appeal.

p. 490

2. Set off.

In an action to restrain further proceedings to foreclose a mortgage, ifc appeared that plaintiff rented his house to B. and that she became indebted and remained indebted for the rent to plaintiff in a sum. sufficient to discharge the balance remaining due upon the,mortgage; at the time the rent accrued, as well as the interest on the mortgage, the mortgage was held for the benefit of B. Held, that the set off of the claim for rent, against the amount due on the mortgage should be allowed.

3. Evidence—Conclusions of witness.

It is not competent to allow a witness to state his conclusions from facts and conversations to which he has testified.

Appeal from a judgment entered in Tompkins county upon the decision made at special term restraining further proceedings to foreclose a mortgage by advertisement, and requiring the defendant to execute at the request of the plaintiff, and at his expense, a satisfaction piece of said mortgage.

M N. Tompkins, for app’lt; William Austin, for resp’t

Findings of fact were made by the court to the effect that plaintiff rented his house to Mrs. Blauvelt and that she became indebted and remained indebted for the rent to plaintiff in a sum sufficient to discharge the balance remaining due upon the bond and mortgage given by plaintiff.

The court also found the burden of proof was on the plaintiff to establish that the house in question was rented to Mrs. Blauvelt and that she is indebted to plaintiff.

There was a conflict in the evidence, and the court saw and heard the conflicting witnesses and presumably followed the witnesses whose testimony seemed to be most satisfactory. The findings of fact should not be disturbed. Day v. Town of New Lots, 107 N. Y., 148 ; 11 St. Rep., 361 ; Valk v. McKeige, 43 id., 26. Roosa v. Smith, 17 Hun, 138 , is in point. Boardman, J., says in that case: “ But we think it very clear that a general term cannot, in a doubtful case upon conflicting evidence, like the one under review, assume the place of the referee and determine from mere reading of the evidence who has told the truth or is best entitled to credit.’'

(2) It was in effect found that Mrs. Blauvelt was entitled to the interest which had accrued upon the mortgage given by plaintiff, inasmuch as the mortgage was held for her benefit when her indebtedness for rent accrued to the plaintiff. It appears the interest accrued, as well as the rent, before the assignment of the bond and mortgage to the defendant. It seems equitable that the off-set should be sanctioned. Richards v. La Toureite, 119 N. Y., 54 ; 28 St. Rep., 609 ; Code Civ. Pro., § 502.

Mi's. Blauvelt is “ the person beneficially interested ” in the recovery of the interest which accrued upon the mortgage held ■ against the plaintiff. Armstrong v. McKelvey, 104 N. Y., 180 ; 5 St. Rep., 611 .

(3) It was not error to sustain the objection to the question put to Mr. Blauvelt He was allowed to state the facts and' the conversation had with plaintiff, and it was not competent for him. to state his conclusion therefrom.

p. 491

The judgment should be affirmed, with costs.

Martin and Merwin, JJ., concur.