32 N.Y.S. 677 | N.Y. Sup. Ct. | 1895
Plaintiffs’ learned counsel insists that the referee erred in making certain findings of fact which support plaintiffs’ right to recover the amount advanced by the assignee of the mortgage, to wit, $4,500, notwithstanding the defense of usury, in accordance with the principles laid down in Miller v. Zeimer, 111 N. Y. 443, 18 N. E. 716. It seems the complaint was like an ordinary one in mortgage foreclosure cases, and that the prayer in the complaint was for a judgment declaring $5,000 of principal to be due upon the mortgage. However, the answer sets up in detail the facts relating to the circumstances of the origin of the mortgage, and of the sale thereof by the mortgagee to Timothy Smith; and so far as we are able to discover from the course of the trial, as presented in the case before us, no objection was taken during the progress of the trial which called the attention of the referee to the point now suggested. Appellants call our attention to the case of Day v. Town of New Lots, 107 N. Y. 148, 13 N. E. 915, and Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. 698, which were actions at law where technical rules were applied to the pleadings. However, as near as we can discover from the course of the trial in this case, the question which those cases determined was not fairly presented to the referee. It seems the parties, by the course of the trial, assumed that the rule which is applicable to cases in equity applied, and that the referee was authorized to give such relief as, at the time of pronouncing his decree, according to the proofs presented and principles of equity, the parties were entitled to by the case presented. He seems to have
2. We have assumed that the evidence warranted, as we think it did, the findings of fact made by the referee to the effect that the mortgage was valid to the extent of $4,500 and interest thereon.
3. It is contended by the appellants that there were certain admissions in the answer which precluded the defendants from giving proof of the circumstances relating to the alleged usury in the mortgage. The course of the trial seems to have assumed that the questions relating to the inception of the mortgage were raised by the pleadings. Under such circumstances, we think the plaintiffs are too late in their objection. The answers were very broad, and warranted the admission of all the facts and circumstances that were developed relating to the alleged usury in the mortgage. It is difficult to see that the plaintiffs in that regard, have been surprised or misled by the course of the trial. The course of the trial is quite different from that pursued in Dunham v. Cudlipp, 94 N. Y. 129.
4. Several exceptions were taken during the progress of the trial, to which attention has been given, and it is not believed that they present prejudicial error, which requires us to interfere. This is an equity action. See opinion of Cross v. Smith (of this term) 32 N. Y. Supp. 671.
5. According to the course of the trial and the findings made by the referee, it is quite apparent that the referee finally reached the conclusion to dismiss the complaint on the ground that the bond and mortgage, so far as they were valid, had been paid by the rents received by the plaintiffs of the premises. It appears by the case
“On the trial of said redemption action the plaintiffs in that case gave evidence before the referee from which the referee found that betvyeen May 1, 1878, and March 1, 1894, while, the plaintiffs in this action were in possession of the said mortgaged premises, they received in rents from the same the sum of $12,477.04; and the defendants in that action, the plaintiffs in this, gave evidence from which the referee found that while the said plaintiffs were in possession of said mortgaged premises they paid out, for the benefit of the same, the sum of $3,951.10. The amounts so found by the referee as having been received and disbursed are fully set out in finding nineteen of his said report, which is here referred to.”
After the parties had adopted such a course for the trial of this action, and in pursuance thereof it had been made to appear by evidence which warranted the finding that “the said sum of $4,500 was all paid prior to January 1, 1894,” we think the discretion exercised by the referee in respect to the costs was erroneous. After reaching such conclusions, he might properly have dismissed the complaint without costs, and we are of the opinion that he ought not to have awarded costs in favor of the defendants. We think the judgment should be modified by striking therefrom the costs awarded against the plaintiffs, and, as modified, affirmed, without costs of this appeal to either party.
Judgment modified by striking therefrom the costs awarded against the plaintiffs, and as modified affirmed, without costs of the appeal to either party. All concur.