McDonnell v. McCoun

Appellate Division of the Supreme Court of New York

McDonnell v. McCoun

127 A.D. 302, 111 N.Y.S. 312, 1908 N.Y. App. Div. LEXIS 1965

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 18, 1908

StatusPublished

This text of 127 A.D. 302 (McDonnell v. McCoun) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDonnell v. McCoun, 127 A.D. 302, 111 N.Y.S. 312, 1908 N.Y. App. Div. LEXIS 1965 (N.Y. Ct. App. 1908).

Pincite

Opinion

Gaynor, J.:

This - is a suit to foreclose a deed of conveyance of real estate to the plaintiff as a mortgage. The appellant, the defendant Diver-side Bank, answered with a general denial and a defence showing that it was a judgment creditor and alleging that the mortgage was made to hinder, delay and defraud creditors of the defendant mortgagors. The plaintiff formally proved the amount of the indebtedness for which the mortgage was made by an instrument dehors between the parties thereto, and then proved by a witness that the amount was • unpaid. On the appellant’s counsel proceeding to cross-examine this witness, counsel for the plaintiff objected that it could give no evidence on its defence of fraud and to set aside the conveyance unless it had served its answer on the defendant mortgagors, and the objection was sustained. However this may be it was competent to examine or cross-examine the witness in respect of the' amount due; but counsel for the appellant did not claim that this was his purpose, but on the contrary only that the examination had reference to the said defence; and subsequently he announced to the court that he no longer attacked the validity of the mortgage, which removed all question of the.examination on that head. When counsel for the plaintiff disclosed by his objection that he supposed from the nature of the question asked that the examination was only to establish the defence of fraud, counsel for appellant should have disclosed that it was also on the question of the amount due, assuming there was no fraud. The court did not have its attention directed to that point, but was diverted from it by the objection and the discussion thereof.

The judgment should, be affirmed.

Woodward, Jenks, Hooker and Miller, JJ., concurred.

Judgment affirmed, with costs.

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Gaynor, J.:

This - is a suit to foreclose a deed of conveyance of real estate to the plaintiff as a mortgage. The appellant, the defendant Diver-side Bank, answered with a general denial and a defence showing that it was a judgment creditor and alleging that the mortgage was made to hinder, delay and defraud creditors of the defendant mortgagors. The plaintiff formally proved the amount of the indebtedness for which the mortgage was made by an instrument dehors between the parties thereto, and then proved by a witness that the amount was • unpaid. On the appellant’s counsel proceeding to cross-examine this witness, counsel for the plaintiff objected that it could give no evidence on its defence of fraud and to set aside the conveyance unless it had served its answer on the defendant mortgagors, and the objection was sustained. However this may be it was competent to examine or cross-examine the witness in respect of the' amount due; but counsel for the appellant did not claim that this was his purpose, but on the contrary only that the examination had reference to the said defence; and subsequently he announced to the court that he no longer attacked the validity of the mortgage, which removed all question of the.examination on that head. When counsel for the plaintiff disclosed by his objection that he supposed from the nature of the question asked that the examination was only to establish the defence of fraud, counsel for appellant should have disclosed that it was also on the question of the amount due, assuming there was no fraud. The court did not have its attention directed to that point, but was diverted from it by the objection and the discussion thereof.

The judgment should, be affirmed.

Woodward, Jenks, Hooker and Miller, JJ., concurred.

Judgment affirmed, with costs.

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Bluebook (online)

127 A.D. 302, 111 N.Y.S. 312, 1908 N.Y. App. Div. LEXIS 1965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonnell-v-mccoun-nyappdiv-1908.