Sackett & Wilhelms Lithographing Co. v. Comstock

39 N.Y.S. 458, 4 A.D. 615

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1896
• Status: Published

Opinion

LANDON, J.

It is only necessary to consider whether, upon the evidence, the learned trial judge was justified in finding, notwithstanding the verdict of the jury upon the issues submitted to ■them, that the defendant executed the second mortgage freely and voluntarily, with full knowledge of its contents, without being induced thereto by fraud or undue influence. This is a question ■of fact. A careful reading of the case satisfies us that the clear weight of the evidence is in support of the findings of the trial ■court. The case for the defendant rests mainly upon her own testimony. In respect to many of the material circumstances occurring at the time the mortgage was executed, some of which are attested by her signature, she simply adduces her own nonrecollection. On the other hand is the positive testimony of several of the persons present, nearly all of whom were impressed with the necessity of conducting the transaction in such way as to exclude all ground for challenging its fairness. The trial judge, after full deliberation, came to the conclusion that they told the truth, and such is our conviction.

The judgment should be affirmed, with costs. All concur.