Opinion
January Term, 1903.
A.P. Ketchum, for the appellants.
Thomas C. Ennever, for the respondent.
This is an action to foreclose a purchase-money mortgage by the assignee thereof. It is disclosed by the pleadings and the proof in the case that the assignor of the plaintiff constructed the house upon which the mortgage is a lien, and sold the same to the defendant Edgar Ketchum, taking as part of the purchase price therefor the mortgage in question. The complaint in the action is in the usual form. The answer averred as a defense thereto that the assignor of the plaintiff at the time of the sale falsely and fraudulently represented certain material facts with respect to the building and its construction; that the defendants relied thereon in making the purchase and giving the mortgage, and that by reason thereof the defendants suffered loss and damage to a greater extent than the sum secured to be paid by the bond and mortgage, and demands judgment that the plaintiff's complaint be dismissed and that the mortgage be discharged and canceled of record. A reply was interposed to the answer by the plaintiff wherein, among other things, it was averred that the defendant Edgar Ketchum did not rely upon any representations made by plaintiff's assignor, but that he examined the premises in question before the purchase and also had the same examined by experts, and after such examination accepted the same as satisfactory, made the purchase and gave the bond and mortgage. The case came on for trial before the court at Special Term, and evidence was given by both parties in support of their respective theories. The court made separate findings of fact and conclusions of law, and held and determined that the defendant was entitled to a deduction from the amount of the mortgage in the sum of $358, and awarded a judgment for the amount due and unpaid upon the said mortgage, after deducting said sum, in favor of the plaintiff. From that decision the defendant appeals.
The latter, however, failed to file any exceptions to the court's conclusion of law, in consequence of which the facts are not before this court for review. Where no exceptions are filed to the conclusions of law, the appeal only brings up for review exceptions which were taken upon the trial. ( Lanier v. Hoadley, 42 App. Div. 6.)
It is not claimed by the defendant in his brief, nor was it orally argued, that there was any exception in the case which would justify a reversal of this judgment. We have, however, examined each several exception taken upon the trial, but find no error therein.
The questions presented for determination by the court were of fact, and its conclusions were reached upon conflicting testimony. There is little difficulty in seeing that the evidence is sufficient in support of the conclusions which were reached.
As no exceptions were taken presenting error, and the facts are not before us for review, it follows that the judgment should be affirmed, with costs.
VAN BRUNT, P.J., O'BRIEN and McLAUGHLIN, JJ., concurred.
Judgment affirmed, with costs.