Reynolds v. Britton

92 N.Y.S. 2, 102 A.D. 609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 1905
• Status: Published

Opinions

O’BRIEN, J.

The appellant insisted in the court below, and contends upon this appeal, that the contract for services and the subsequent contract for the mortgage were but parts of a single, indivisible arrangement or agreement, under which the plaintiff was to perform certain services in connection with the sale of water lots belonging to McMahon, deceased, and that the mortgage under foreclosure was given as additional security for such services; that such contract was a “lobbying” agreement to improperly influence legislation, and is therefore void as against public policy. If the finding of the Special Term against this contention be sustained, then it becomes immaterial and unnecessary to determine whether or not the first agreement, relating to the sale of the lots, was or was not a lobbying contract, such as is condemned because against public policy. Upon the disputed question of fact as to whether both agreements were inseparably connected as parts of one transaction, the learned judge at Special Term resolved it in plaintiff’s favor; and, unless it is against the weight of evidence, we are not justified in disturbing the finding.

It must be conceded, we think, that in form, at least, the agreements are separate and distinct; arid were it not for the fact that, in the contract for the mortgage, it was stated that the contract under which the plaintiff agreed to sell the water lots for McMahon was to be preserved, the finding of the Special Term would be amply supported. This reference, however, to the former agreement under which the plaintiff was to sell the lots, raised a strong inference in favor of the view for which the appellant contends. On the other hand, in viewing the transaction relating to the sale of the plaintiff’s house on West 134th street, it appears, with respect to the mortgages thereon—the first for $7,500, and the second for $1,000—that Mr. McMahon regarded himself as obligated to -pay them, as evidenced by the fact that he did actually pay the second mortgage, for $1,000, which mortgage, to the extent of three-fourths, at least, was owned by plaintiff. Were it not that the evidence shows that the house on West 134th street was not worth much, if anything, over the $8,500 in mortgages, we would be forced to conclude that it was a bona fide transaction, under which Mr. McMahon purchased from the plaintiff the property. The fact that he paid much more than its value is not conclusive against the good faith of the transaction, because it is of frequent occurrence for purchasers to pay more than property is worth. We have, however, the two facts that for the $5,000 mortgage Mr. McMahon received little or no value, and in the letter embodying the contract for the mortgage the reference is made, as already suggested, to a continuance of the contract under which the plaintiff agreed to sell the water lots. We have, therefore, a close question of fact, which, in the light and with the aid of the other testimony in the case, it was for the learned trial judge to decide. It is not our purpose to detail the testimony at length, but, in passing, we feel justified in saying upon the subject of the weight of evidence that the testimony of both the plaintiff and the daughters of Mr. McMahon, as bearing upon the disputed questions of fact, was of the most unsatisfactory kind. Thus the credibility to-be attached to the plaintiff’s evidence was seriously affected by his cross-examination; and that on the part of the daughters was weakened not alone by the improbability of some parts of it, but by the fact found by the learned trial judge that they failed to satisfy him that there was a typewritten agreement, made at the same time as'the contract for the mortgage, to the effect that mortgage was not to be foreclosed until the water rights were sold.

We have sufficiently indicated our view that the disputed questions of fact as to whether the contract for the mortgage was an inseparable and integral part of the agreement for the sale of the water lots, or whether the consideration for the mortgage was other or different than services to be rendered in obtaining legislation, were for the trial court. Apart, therefore, from any opinion upon the facts which we might express, had we the right in the first instance to determine them, we think, because not contrary to or against the weight of evidence, that we would not be justified in disturbing the findings made by the learned trial judge. It follows that the judgment should be affirmed, with costs.

PATTERSON and LAUGHRIN, JJ„ concur.