Mayo v. Davidge

4 N.Y.S. 77, 22 N.Y. St. Rep. 67, 51 Hun 644, 1889 N.Y. Misc. LEXIS 196

• Court: New York Supreme Court
• Decided: February 11, 1889
• Status: Published

Opinion

Dykman, J.

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.