The New York Supplement Volume 140 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1913 edition. Excerpt: ...McLAUGHLIN, J. Action to recover $15,000 upon the following instrument: "December 13, 1904. "Beceived from George K. Wallace a loan of fifteen thousand ($15,000) dollars, to be repaid to him on or before four months from the date hereof, with the understanding that, In case I fall to repay said amount, be may have the same applied upon the bond of the second mortgage of seventy-five thousand ($75,000) dollars on Hotel Seymour.. John R. Todd." At the close of the trial a motion was made to dismiss the complaint. A decision upon the motion was reserved, and the issues were submitted to the jury, with instructions to find a general verdict, and also to answer certain specific questions of fact. The jury disagreed, and the trial court, after argument, granted the motion to dismiss. Plaintiff appeals. 1 The principal question litigated was whether Wallace, plaintiff's assignor, or the defendant, had, under the instrument above quoted, the option to apply the $15,000 upon the mortgage therein referred to. It was unnecessary to determine that issue, because the undisputed evidence establishes that the $15,000 was actually applied as a payment upon the mortgage by consent of both parties. The letters passing between them after the payment was made, and especially Wallace's letter of January 30, 1905 (Defendant's Exhibit M), and defendant's letter to Wallace, dated January 28th (Defendant's Exhibit L), taken in connection with the other correspondence, clearly and unmistakably establishes it. The trial court, I think, should have so held and dismissed the complaint. 2J But, even if it be held there was some evidence to go to the jury, the evidence was so preponderating in favor of the defendants that a verdict in favor of the plaintiff would not...