Dorthy v. Strauchen

Hardin, P. J.: An extended and elaborate argument has been made by the appellant in respect to the pivotal questions of fact arising at the trial upon a large volume of evidence. In behalf of the appellant it is insisted that the court has gone wrong upon the facts which lie at the foundation of the decision. In behalf of the respondents an extended argument has been submitted to the court upon the facts, testimony and features of the case for the purpose of supporting the conclusions of fact stated by the trial court. • After much reflection .upon the various phases of the case as presented in the arguments of the learned counsel, and a cautious inspection of the evidence and a perusal of the findings of fact and the elaborate opinion delivered by thé trial judge, we find no occasion to interfere with the findings of fact stated in the decision.. . The trial court had the advantage of the presence of the witnesses, observing their demeanor during the long trial that ensued, and, judging by the opinion delivered, fully appreciated the different lines of evidence presented, and has stated conclusions which seem reasonable. Giving to such decision such influence as we think it fairly is entitled to in connection with our examination of the evidence, we are of the opinion that the findings of fact ought not to be dis [91] turbed. (Teeter v. Teeter, 47 N. Y. St. Repr. 580 ; Cook v. N. Y. El. R. R. Co., 63 id. 18 and cases cited; Sackett y. Thomas, 4 App. Div. 448.) It is insisted in belialf of the appellant that the transactions disclosed in the evidence must be viewed as a whole and all of the papers examined in connection with each other. The transactions relating to the papers mentioned in the pleadings and disclosed in the evidence transpired upon several- days from the 2.6th of April, 1895* forward. The instruments executed, however, related to different properties. In the case of People v. O. B. & S. B. B. Co. (92 N. Y. 98) the deeds that fell under construction related to the same property, one-from an executor to a third person and the latter back to the executor, under whom, as an individual, the vendor claimed. The case of Knowles v. Toone .(96 N. Y. 534) states the rule as follows.: “ Where two instruments are intended to embody a contract between the parties they must be read and construed tog-ether; the fact that they bear different dates is immaterial if the contract is not carried into effect until both are executed.” We think the trial judge sufficiently observed the rule, and that his opinion clearly indicates that he followed it in his examination and determination, of the facts; Hor do we think the trial judge committed an error in inserting in the ñu dings of fact, viz.,. “ that whether or not the conveyance to Strauchen was an absolute conveyance, or whether the same was. by way of 'mortgage, does not clearly appear.” It is quite obvious, from the scope of the complaint, that the pleader alleged that the securities which the defendant received were taken by way of mortgage. The evidence indicates that at the time the deed of the 26th of April, 1895, was made, the plaintiff was largely indebted to the male defendant, and that the defendant had, besides advances directly made, become surety upon plaintiff’s paper. The mortgage of the 29th of April, 1895, was not, in terms, for-$10,000. In the consideration clause were ■ the words: “ In consideration of the sum of one dollar and other valuable consideration.’* And in the condition clause were the following words: “ This grant is intended as a continuing collateral security for the payment to the92 ■said party of the second part of any and all notes, checks and other •obligations made or incurred by the said John F. Dorthy, party of the first part, to the party of the second part, and for any renewal ■or renewals thereof, and for any charges or expenses that the party ■of the second part may incur for the benefit of the said John F. Dorthy, and to save harmless the party of the second part from all loss, cost and damage that he. may sustain, either as indorser of any ■such note, check or other obligation of the said John F. Dorthy, or as holder and owner thereof or of any part thereof.” Although the ■deed of April twenty-sixth was in form absolute, as appears by an inspection of it, we think, notwithstanding the defendant had alleged in the answer that the deed was absolute, the trial judge ■committed no error in inserting the clause in his findings of fact, which has been quoted. And we.think that no error is presented by the use of the following words, viz., “ whether the same was by way of mortgage does not clearly appear,” The plaintiff not having asked in his complaint to redeem from the deed, it was not important that the question as to his right to so redeem should be determined in this action. The foregoing views lead to sustaining the result reached at the Equity Term. • All concurred, except Folleto, J., not sitting. Judgment affirmed, with costs.