Whitman v. Foley

• Decision Date: 24 February 1891
• Citation: 26 N.E. 725,125 N.Y. 651
• Parties: WHITMAN v. FOLEY et al.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 651

26 N.E. 725

WHITMAN

v.FOLEY et al.

Court of Appeals of New York.

Feb. 24, 1891.

Appeal from supreme court, general term, fifth department.

Wm. E. Hughitt, for appellants.

John D. Teller, for respondent.

GRAY, J.

The plaintiff brought this action for the foreclosure of two mortgages, alleging a certain indebtedness to be due upon the bonds for principal and for interest. These appellants answered, alleging that the sums mentioned in the complaint were not due, nor unpaid, and that sums were paid thereon. ‘The times of payment and the amounts these defendants are not now able to state.’ The form of their pleading is open to the respondent's criticism, and it is both inartistic and loose; but it cannot be taken as containing any admission of the plaintiff's allegations as to the amount due from the defendants, and, whatever the objections to its sufficiency, they must be deemed to have been waived by proceeding to trial upon the merits. The failure to raise any such question by a proper motion or exception precludes its discussion in the appellate court. Cowing v. Altman, 79 N. Y. 167. The issue was presented as to the amount for which the mortgage deeds were still a lien upon the lands described in the complaint, and that was the issue which was referred to the referee to hear and determine. Upon that determination depended the computation which he was ordered to make of the amount due to the plaintiff. The uncertainty respecting the amount due upon the bonds may be accounted for by reason of the death of the obligee and of the failure of the debtors to have any receipts for payments. None seem ever to have been taken. The defendants were uneducated persons, and ignorant of business methods, and in their confidence in the plaintiff's intestate they had neglected to take the usual precautions to vouch for these payments. There were indorsements upon the bonds of payments made at various times, and the plaintiff relied upon them as solely evidencing the basis for a computation of the amount for which the mortgages were enforceable. The defendants adduced and relied upon certain evidence of admissions or declarations made by the plaintiff's intestate to others, respecting the amount of the indebtedness. The referee made this finding as to the payments, viz.: ‘That sundry payments were made upon said bonds by said John D. Foley and others, but it was not proven before me in every instance what were the amounts or dates of said several payments, nor upon which of said bonds the same were applied. But such payments were to such an amount that on the 19th day of August, 1885, there was due upon both said bonds and mortgages to said George A. Whitman, or upon whichever one of the same was then unpaid, the sum of five hundred dollars, and no more.‘ Upon that finding of fact followed the referee's legal conclusions that the plaintiff was entitled to the usual judgment of foreclosure and sale, and to payment from the proceeds of a sale. The finding was excepted to by plaintiff, but the court, at special term, sustained the referee's report, and decreed in conformity therewith. Upon plaintiff's appeal the general term reversed the special term, and ordered a new trial. As their order did not state that the reversal was on the facts, it must be presumed that it was for some error of law. Code Civil Proc. § 1338. It therefore is incumbent upon us to examine the record in order to discover whether any exceptions to the referee's findings of fact raised any question of law from their not being supported by evidence, or whether, in the course of the trial, the referee committed such errors in his rulings as, being excepted to, would have justified the general term's order. By their opinion alone we cannot be guided, and the respondent here is entitled to the benefit of any legal errors committed by the referee which would have rendered a new trial necessary.

The plaintiff excepted to the referee's finding that the amount due on the 19th day of August, 1885, was the sum of $500 and no more. If there was no evidence to support such a finding a question of law was presented and the error was most grave; for the question went to the very foundation of the judgment of the special term. The finding directly affected and led to the conclusion reached by the referee as to the amount for which the mortgages were enforceable. The bonds and mortgages were executed in 1870 by John D. Foley, a previous owner of the mortgaged premises,-one having been delivered to the plaintiff's intestate and the other one to Jane Calvert,-and affected the same premises. Subsequently the intestate acquired the Calvert bond and mortgage by assignment. John D. Foley was made a party defendant with the present owners of the property, but he was able to prove a release from his bonds, and had judgment in his favor. The present owners, these appellants, being without receipts, and unable to prove any particular payment on account of the bonded indebtedness not indorsed upon the bonds, undertook to establish the extent to which the debt had been reduced by witnesses to whom the deceased mortgagee had made statements upon the subject. Among these witnesses were two of the assessors of the town in which the deceased was a resident, and it is their evidence upon which the referee, concededly, relied. The assessor for the particular district where Whitman, the plaintiff's intestate, lived, was his neighbor for many years. In the year 1883, while making his preliminary rounds for assessment purposes, and discovering the two Foley mortgages of record, he spoke to Whitman of them, and of the amount they represented, in connection with the amount of his taxable personal property, whereupon Whitman said it must be a mistake, as he never owned but one. The assessor, however, said he would assess him $4,000. Subsequently, on the day for hearing objections to assessments, commonly termed ‘grievance day,’ Whitman appeared before the board of assessors, and made an affidavit that he had ‘one mortgage worth about $1,000, and no more taxable personal property.’ Thereupon his assessment was reduced to $700. The same assessor testified to another conversation with Whitman, relative to his assessment in the following year. He told him he had certainly found two mortgages recorded in his name. Whitman, in answer, said, ‘Well, if there is, they are pretty much all paid.’ On ‘grievance day’ the assessment was reduced to $600. The next year, 1885, on ‘grievance day,’ again Whitman appeared before the assessors, and was examined under oath. The same assessor, as witness, testifies that Whitman said ‘$500 was all we could put him down.’ Upon being asked ‘if the Foley boys...