Hyman v. Friedman — 45 N.Y. St. Rep. 636

Majority

p. 636

Fanny Hyman, App’lt, v. Betti Friedman, Resp’t.

(New York Common Pleas, General Term,

Filed April 4, 1892.)

Headnote

1. Appeal,—Cabe.

A statement in a case on appeal that it contains all the testimony is not equivalent to a statement that it contains all the evidence, and does not affect the conclusiveness of the findings of fact upon the appellate court.

8. Mortgage—Fraud.

In an action to foreclose a mortgage, findings that the mortgage was procured from defendant by plaintiff and others in collusion with her by

p. 637

means of representations that the moneys to he secured thereby would be delivered immediately on its execution; that such representations were made with intent to deceive and defraud defendant; that she executed the mortgage relying on such representations, and that no consideration was given to defendant therefor, are sufficient to sustain a judgment that the mortgage be delivered up and cancelled.

Appeal from judgment in favor of defendant, directing that mortgage be delivered up and cancelled.

Action for the foreclosure of a mortgage on real property, the •defense being that the mortgage was procured by fraud and was. without consideration.

Samuel F. Hyman, for app’lt; David Zeventritt, for resp’t.

The case on appeal purports to contain all the testimony, but not all the evidence, taken upon the trial, and the facts found by the learned trial judge are therefore conclusive upon us. Aldridge v. Aldridge, 120 N. Y., 614 , 616; 31 St. Rep. 948 . These are to the effect that the bond and mortgage described in the complaint were obtained from the defendant by the plaintiff, and others in collusion with her, by means of representations that the moneys intended thereby to be secured by the defendant would be delivered to her immediately upon the execution of those instruments; that such representations were false and fraudulent, and were made with intent to deceive and to cheat and defraud the defendant; that relying, upon plaintiff’s good faith, and believing the representations to be true, defendant executed and delivered the bond and mortgage, but that no consid-6 eration whatever was given by the plaintiff to the defendant therefor. Nothing further seems to be required to sustain a judgment for the defendant adjudging the bond and mortgage null and void and directing them to be delivered up and cancelled, and as plaintiff’s exceptions to the rulings upon the trial prove, upon examination, to be unsubstantial, the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Daly, Oh. J., concurs; Pryor, J., concurs in result.