Guion v. Mundy

18 N.Y.S. 445, 45 N.Y. St. Rep. 667

• Court: New York Court of Common Pleas
• Decided: April 4, 1892
• Status: Published

Opinion

Bischoff, J.

At the end of the case on appeal there appears the following: “This case does not contain all the evidence taken at the trial. There was additional evidence for the defendant, which was cumulative. ” Obviously, this does not exclude a presumption'that evidence for the plaintiff, which does not appear in the case, abundantly sustained the facts found by the referee, and the absence of a statement that the ease contains all the evidence precludes us from all inquiry as regards the sufficiency of the evidence to support those facts. Aldridge v. Aldridge, 120 N. Y. 614, 616, 24 N. E. Rep. 1022. The facts found being conclusive upon us, and amply sustaining the referee’s conclusions of law, we are left to examine the exceptions taken by defendant upon the trial for ground for reversal of the judgment appealed from. At the close of the testimony defendant moved to dismiss the complaint on the sole ground that it then appeared that plaintiff was precluded from maintaining this action because of her alleged agreement to forbear the collection of the sum loaned to the defendant until after the determination of the pending appeal in the Wellman litigation, and that it should be first applied by the defendant in discharge of the obligation of one of the sureties on said appeal, as such. This motion was denied, and properly. The making of this alleged agreement constituted an affirmative defense, and was pleaded as such, and to have authorized a nonsuit, or dismissal of the complaint, it was incumbent upon defendant to have established it by undisputed and unimpeached evidence, or by a clear preponderance of the evidence. The contrary, however, appears. Ho written assent on the part of the plaintiff to such an agreement was produced, and she denied emphatically that she ever made or authorized it, or that she knew at any time that it was entered into on her behalf. For the defendant the evidence relied upon to establish the alleged agreement consisted of his own testimony, which, in itself, was liable to discredit, because that of an interested.party, and the testimony of several witnesses to admissions alleged to have been made by her, and her silence when such an arrangement was mentioned in her presence. Taken as a whole, the testimony of these witnesses is of such an unsatisfactory character that, within the rule laid down in Baird v. Mayor, etc., 96 N. Y. 567, the conclusion of the referee respecting its credibility ought not to be disturbed. Of the four remaining exceptions none are discussed upon appellant’s brief, nor were they referred to on the argument of the appeal, and, upon examination, they appear to be too frivolous to merit discussion. The judgment appealed from should be affirmed, with costs. All concur.