By the Court,
Hogeboom, J.
The plaintiff in this action was the grantee of certain lands formerly owned by Ephraim Beach, upon which the original defendant, Thomas B. Cooke, claimed to hold a valid mortgage. He was also the assignee of Ephraim Beach, of certain demands and choses in action, claimed to be held by Ephraim Beach against said Cooke ; and he instituted this suit in'both capacities: 1. As the owner of the real estate, to obtain a decree declaring the mortgage satisfied, and removing the apparent incumbrance from his land; or, if said mortgage was not entirely paid, to apply upon the same so much of the claims of which he wasassignee as would be sufficient to extinguish the same. 2. As assignee of the aforesaid demands, to obtain judgment against Cooke for the amount thereof, or so much of such amount as remained after satisfying the mortgage. There was also a prayer for general relief. This is substantially the relief sought by the complaint; and as a part of it, or incidental to it, the complaint prayed that (if the mortgage was found not to be wholly paid) the balance due upon the same be ascertained and determined by the judgment of the court, with a view to its application upon the demands assigned to the plaintiff; knd, also, that an accounting might be had of all dealings and transactions between Ephraim Beach and Thomas B. Cooke, to the end that the balance might be ascertained, and the defendant ordered to pay the same to the plaintiff. The plaintiff does not seem to have anticipated the contingency that there might still be found a balance due upon the mortgage, after all payments and counter-claims had been credited thereon ; and therefore, the *367complaint does not contain any specific -prayer for permission to redeem the mortgage, which, nevertheless, would have been a perfectly proper prayer to have incorporated into the-complaint, and consistent I think with the case made therein. And the question in this case is, whetherwithout such relief being specifically sought, or apparently contemplated when the action was commenced, the plaintiff was nevertheless entitled to it at the close of the case, and had a right to-demand it from the tribunal which disposed of the action ; for I think it was in substance demanded before the questions in controversy were finally submitted to the referee. The case shows that on the argument before the referee, the plaintiff distinctly claimed a decree, 1. Declaring the mortgage paid and satisfied, or 2, If not so, ascertaining the amount remaining due, and decreeing satisfaction on payment thereof. It might well be, that in the absence of a specific prayer for leave to redeem, and in the absence of any thing occurring* in the proceedings before the referee to induce him to suppose that the plaintiff sought the privilege of redemption,, he might reasonably conclude that the plaintiff did not desire it, and so omit any provision for it in his judgment. But as the facts embraced in the pleadings, and proved on the trial, presented a fit case for such relief if desired; and as the claim for such relief was distinctly made at the close of the case, and was, susceptible of being granted under the allegations in the pleadings and the proofs connected therewith, and under-the clause for general relief, (Ward v. Dewey, 16 N. Y. Rep. 519; Eno v. Woodworth, 4 Comst. 253; Marquat v. Marquat, 2 Kernan, 336; Emory v. Pease, 20 N. Y. Rep. 62,) I am of opinion that the decree should have provided for it to the extent claimed ; that is, that it should have declared (as did the referee’s report) the amount remaining due upon the mortgage, and that upon payment .thereof by the plaintiff, the mortgage should be canceled. The plaintiff, I understand, is satisfied to accept of such a decree, fixing the time of payment within a rea*368sonable time, (usually six months,) in analogy to the practice in cases of redemption. (2 Barb. Ch. Pr. 199, 630. Quin v. Brittain, Hoff. Ch. R. 353. Waller v. Harris, 7 Paige, 167. Boquet v. Coburn, 27 Barb. 230. Bell v. Mayor, &c. 10 Paige, 49.) And the defendant will not, of course, object to such a limitation of time. In thus modifying the judgment of the_ referee, I do not see that any injustice is done to the defendant, who has had a full opportunity to litigate with the plaintiff the amount remaining due on this mortgage. And after such means of litigation the amount thus ascertained to be due should be put in a shape (as it will be by such a modification of the decree) which will render it conclusive between the parties. It is suggested, indeed, on the part of the defendant, that by the decision of the referee the plaintiff’s grantor and assignor has been permitted to testify to facts as to which he was incompetent to give evidence. But I do not think this suggestion should have any effect upon our decision. If the ■ action of the referee was not satisfactory to the defendant, and by the evidence of Ephraim Beach the amount due upon the mortgage has been unjustly diminished, the practical remedy was to review his decision by an appeal on the part of the defendant, who was bound to anticipate the possible modification of the decree by a court of review on the appeal of the other party. It is also suggested that the evidence in the case justifies the conclusion that the plaintiff was not a bona fide purchaser of the land in question, and that upon that ground an absolute and unconditional decree dismissing the plaintiff’s complaint was proper. The answer to this is, that the referee evidently decided that fact adversely to the defendant; for, in the first place, he refused to nonsuit on that ground and in the second place, he reported that the plaintiff was the grantee of the land, and the assignee of the choses in action, which being unqualified must be construed to mean the bona, fide assignee and grantee. And there is evidence to sustain his finding.
*369This is as far as it is necessary to go, in the disposition of this case. It is unnecessary to inquire whether the action was maintainable as being essentially a bill quia timet. And it is unnecessary to decide whether the state of the accounts between the parties would have justified a decree more favorable to the plaintiff. I am of opinion that, taking the case as presented to us, we must assume that the stating of the account between Ephraim Beach and Thomas B. Cooke (farther than ascertaining the amount due on the mortgage,) was waived or abandoned by the plaintiff. For, ■ 1. The referee held that Ephraim Beach was an incompetent witness on that subject. 2. The plaintiff objected to evidence offered by the defendant bearing on that subject, “ that the state of the accounts between Beach and Cooke is not involved in the cause as it now stands.” 3. The referee expressly reports that such purpose of the action was abandoned by the plaintiff This, as a fact stated by the referee as occurring in the proceedings in the cause, must, like any other fact of a like nature, as the fact of an examination of a witness, or the fact of an objection to testimony, be taken to be true. The remedy for it, if it be an error, is not by appeal, but by a resettlement of the case, and a correction of the error.
I am of opinion that the judgment appealed from should be so modified as to declare and adjudge that the sum of $1259,84, with interest from the 5th day of June, 1843, remains due and unpaid to the plaintiff upon the mortgage mentioned in the pleadings, and that upon payment thereof, together with the costs- of the action as ordered by the referee, within six months after written notice of the entry of this decree, (unless in the meantime an action for the foreclosure thereof shall have been commenced or shall be in progress,) and then upon the payment of the costs of the suit in addition, unless the court in that action shall otherwise .order, the plaintiff shall be permitted to redeem and pay the said mortgage; and the defendant shall, upon re*370ceiving such payment execute, acknowledge and deliver a satisfaction thereof; and that neither party shall have costs, as against the other, on this appeal.
[Albany General Term,
March 2, 1863.
Gould. Hogeboom and Miller, Justices.]