112 N.Y.S. 742 | N.Y. App. Div. | 1908
This action was brought to have certain deeds absolute on their face by which the plaintiff conveyed to the defendant his interest in certain real property declared to be mortgages, for an accounting, and the reconveyance to the plaintiff of the premises conveyed by such deeds. The complaint alleges' that, prior to the 1st of September, 1905, the plaintiff had borrowed from the moneys of the estate, of Patrick A. Fogarty, deceased, and from .the defendant individually,, divers sums of money aggregating $31,700; that the plaintiff has no knowledge as to whether these were advanced to him from the moneys of the estate of his father or from the defendant’s individual moneys; that the plaintiff had, prior to the 1st of September, 1905, repaid to thé defendant the sum of $24,700.; that subsequently thereto plaintiff applied to the defendant for an additional loan and the defendant then agreed to loan to the plaintiff the sum of $5,000, upon plaintiff giving to the defendant as security
The object of the action is to have these conveyances absolute on: their face declared to be mortgages and to require the defendant' upon payment of any amount that is due to reconvey the property to the plaintiff, and the accounting that is asked for is merely to-ascertain what amount, if any, is due. Before the plaintiff is entitled to an accounting he is bound to prove that these conveyances, were mortgages and not absolute conveyances of property, and that, fact being proven the court will direct an accounting. It does not appear, therefore, that this discovery of the books and papers of" the defendant has any relation to the main issue that must first be-tried, namely, the real character of these conveyances. The inspection of these books and papers would only become necessary if the-court should upon the trial find that the conveyances were mortgages,, when an accounting would be ordered at which the defendant, would be compelled to produce such books and papers. A discov—
This order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars- costs.
Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.