112 N.E. 1070 | NY | 1916
This action is brought to set aside a mortgage or deed of trust on the ground of duress and abuse of process. A judgment in favor of the defendants has been unanimously affirmed at the Appellate Division. The plaintiff claims that the conclusion of duress and abuse of process must be drawn as an inference of law from the facts found. We do not share that view. The inference, if permissible at all, is at the utmost one of fact. The courts below have refused to draw it, and their conclusion in that regard is not subject to review.
The judgment is, however, defective in form. It not only adjudges the validity of the mortgage and dismisses the complaint on the merits with costs, but it incorporates a conclusion of law to the effect that "the claims described in the said conveyance in suit are all due and owing with interest as stated therein." Not every conclusion of law has a place in a judgment (Porter
v. International Bridge Co.,
The judgment should be modified by striking out the provision that "the claims described in the said conveyance in suit are all due and owing with interest as stated therein," and as modified affirmed, without costs to either party in this court.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, CUDDEBACK, CARDOZO and POUND, JJ., concur; HOGAN, J., absent.
Judgment accordingly.