35 N.Y.S. 970 | N.Y. Sup. Ct. | 1895
The defendants Henry A. Booth and Alice M. Booth were not parties to the action brought by the First National Bank of Amsterdam against Elizabeth N. Shuler and others, and therefore are not bound by the proceedings in said action, the findings of the referee therein, or the judgment thereon. The question of fact litigated in this action, as to the payment of the mortgage sought to be foreclosed, was not in issue in the former action I have referred to. The trial court has found that the mortgage in question has been fully paid and satisfied, and it has also found that such payment and satisfaction was made by the husband of the defendant Shuler,'before he was insolvent, and was made for sufficient consideration; that is, an agreement by his wife to execute with him deeds for the conveyance of certain real estate, whereby her right of dower therein would be released. Upon an examination of the record in this case, it appears that there was some evidence to sustain these findings of fact. We consequently, under repeated decisions of this court, are not at liberty to reverse such findings. Standing unreversed, they effectually dispose of plaintiff’s cause of action. As an original proposition, I should feel inclined to hold that the plaintiff’s objection to the testimony of the defendant Shuler of transactions and conversations with her deceased husband were incompetent, under section 829 of the Code, but the cases of Uhlmann v. Brownell (Sup.) 3 N. Y. Supp. 699, and Gillies v. Kruger, 33 Hun, 314, affirmed by 102 N. Y. 666, constrain me to hold to the contrary.
Judgment should be affirmed, with costs. All concur.