Van Schaick v. Van Buren

HERRICK, J. I am not entirely satisfied with the findings of the referee upon the facts in this case. It seems to me that the preponderance of evidence shows that the agreement upon the part of the plaintiff was to advance an additional $1,500 in the spring of the year following the giving of the note in question, and to then take a mortgage for the whole $3,000, and surrender up the note of $1,500. But, conceding the true state of facts to be as I have suggested, still the agreement is one that does not seem to be capable of being enforced by reason of its -uncertainty. The authorities on that point cited by the referee in his opinion, and also by the court in the case of Baurman v. Binzen, (Sup.) 16 N. Y. Supp. 342, seem to sustain the contention of the referee upon that point, (see, also, Milliman v. fluntington, 68 Hun, 258, 22 N. Y. Supp. 997;) and I therefore think that judgment should be affirmed. I see no occasion for writing an opinion. Let judgment be affirmed with costs. All concur.