Free v. Farcher

1 N.Y. St. Rep. 767

Opinion

Cullen, J.

This is an appeal from a judgment of foreclosure and sale of mortgaged premises. The defense is usury. The case presents solely a question of fact. The action has been tried twice. On the first trial the referee found there was no usury. The judgment was reversed by the court on the facts. A second trial before a new referee has resulted also in favor of the plaintiff. While the court on appeal is authorized to review findings of a trial court or referee to an extent not permitted as to the findings of a jury, still some weight should be attached to the decision of a tribunal which has had the advantages of personally hearing witnesses. Here two unexceptionable referees have, with that advantage, come to the same conclusion. The case is doubtful, and we do not think the preponderance so clearly for the defendant that we should disturb the judgment.

The judgment appealed from should be affirmed, with costs.