Lawrenceville Cement Co. v. Parker

15 N.Y.S. 577 | N.Y. Sup. Ct. | 1891

Pratt, J.

We think the evidence in this case justified the learned trial judge in his conclusion that there was no intent to hinder, delay, or defraud S. W. Parker’s creditors by any party. There were divers claims against S. W. Parker which were released in consideration of his conveyance to C. W. Parker, and the latter, as another element of the consideration, gave his bond for $30,000, and his mortgage to Burns covering the premises, to secure this $30,000, which the grantor actually owed to the American Exchange Bank, of which Burns was cashier. Burns accepted this mortgage for the bank, with its privity and discount, pursuant to a previous bona fide arrangement made between it and the Parkers. We see no difficulty in recognizing this mortgage as a valid security in favor of the bank, though it was given to Burns in his own name. Price v. Brown, 98 N. Y. 388, was a case where a mortgage was given to a mortgagee for $50,000, of which $5,000 was for the benefit of another, and the court enforced the implied trust, although it was made out wholly by paroi proof. At all events, we fail to see how this question concerns the plaintiff. It was not harmed in any way. There was ■a $30,000 debt to the bank by the elder Parker, which has been secured by his grantor pursuant to a previous bona fide agreement. We are not disposed to interfere with this decision because the trial judge refused all of the plaintiff’s requests, or propositions of facts, in a single sentence, instead of marking his refusal against the margin of eacli one singly. That was a refusal of each singly. If any refusal was erroneous, the error may be pointed out, and is available for plaintiff, quite as certainly under this form of refusal as if the trial judge had dealt with each one separately. But no such error has been pointed out. The proposition that the findings are inconsistent is too fanciful to be real. It'is based on theory. Indeed, it is plainly argued, as a general proposition, that the legal effect of a refusal to find is to find the contrary. We cannot assent to this proposition. A judge may properly refuse a proposition because the fact lias been already found, either upon the adversary’s propositions or in the decision itself. There is no inconsistency in such a recur d. So, too, it may be refused because it was immaterial. The trial judge is not bound to state the reasons for a refusal. It is enough if his refusal may be fairly justified, in any view of the case. We have examined the exceptions to the judge’s rulings during the trial, and see no occasion- to question their propriety. The admission of the Warren release, although executed after the suit was commenced, did no harm. The bargain had been previously made that Warren would release S. W. Parker if he would convey to O. W. Parker, and the grantor was, in law, released the moment he accepted the offer by making the conveyance. The writing was merely a performance of the oral agreement. The real question was whether or not the oral bargain was in fact made, and that is covered by the finding that it was made, and that there was no fraudulent intent. Nor do we find any matter which seems to be worthy of serious consideration in the'refusal to strike out a part of S. W. Parker’s answer. The facts were all developed, so that, even if there was .any technical misstatement, it was corrected. The other alleged errors concerning which complaint is made have been already incidentally considered.

The judgment must be affirmed, with costs to each respondent.