McSorley v. Hughes

12 N.Y.S. 179, 65 N.Y. Sup. Ct. 360, 34 N.Y. St. Rep. 945, 58 Hun 360, 1890 N.Y. Misc. LEXIS 3384

Opinion

Pratt, J.

The testimony fully sustains the findings of fact. The transaction was clearly a loan of money. The papers executed must be regarded as security for a loan. - At the expiration of the time of payment, defendant, if he desired to cut off plaintiff’s right to redeem, should have filed a bill for that purpose. Hot having done so, plaintiff’s tender was made in due time, and should have been accepted, and the property reconveyed. Some exceptions were taken to the admission of testimony, and it is urged that a new trial should be granted upon that ground; but that has never been the practice in equity. Under the ancient practice, testimony in equity was taken before an examiner, who took all that was offered, and the chancellor decided ■upon the case so brought before him. Under that system, there could not well be any question as to the proper reception of testimony. The judge was supposed to know what testimony was proper, and what should be disregarded, and the recent practice of taking,testimony in equity cases before the ■court has not so changed the rule as to make the improper reception of evidence a ground of reversal. Forrest v. Forrest, 25 N. Y. 510. The proofs abundantly sustain the judgment, which must be affirmed, with costs.