Martin v. Moore

38 N.Y.S. 652 | N.Y. App. Div. | 1896

Per Curiam:

The record in this case fails to state that it contains all the evidence, in consequence of which we must assume that there was evidence sufficient to warrant the judgment rendered. We have, however, examined the evidence contained in the record, and are of opinion that it is sufficient to support the finding of the trial court. It appears by the testimony of plaintiff that he was employed by certain creditors to collect debts which were owing to them by one Staats. That when plaintiff negotiated with Staats for payment he delivered to the former the mortgage now sought to be foreclosed under an arrangement that plaintiff was to sell the same for a specified sum, apply the proceeds to the payment of the debts and deliver the remainder after such payment to Staats. And it was then suggested that Teator, one of the creditors represented, by plaintiff, might be induced to purchase the same at a specified sum, and, if so, that Teator could pay himself and the other creditor, for whom plaintiff acted, and that Staats would trade out the remainder at Teator’s store. Plaintiff took the mortgage, negotiated a sale of it to Teator on the specified terms, and thereafter an assignment of the mortgage was made by Staats to Teator and an agreement drawn and executed, stating the terms upon which Teator took title to the mortgage. It thus appears that plaintiff’s connection with the transaction was the ordinary one of an attorney collecting a debt for his client. And it is evident that when he received the mortgage he took no title to the same either as trustee or otherwise. It was not intended that-he should take title as trustee or acquire any beneficial interest therein either for himself or another. He was a mere agent and attorney, was employed as such, and as such conducted the negotiations which resulted in the assignment of the mortgage to Teator. He, therefore, is without interest, either legal or equitable, individually or as trustee, in the mortgage, and the conclusion of the court in this regard is sound in fact and law. This result renders unnecessary of consideration whether error was committed by the court in the reception of evidence upon the trial. We may assume that the court erred in this regard. But plaintiff was not thereby prejudiced, for upon his own showing he could not recover, as he was without interest in the subject-matter.

It follows that the judgment, appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.