Miller v. Friar

Full title: OTTILIA MILLER, as Executrix of WILHELMINA SPITZBART, Deceased, Appellant…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 17, 1943

266 App. Div. 792 (N.Y. App. Div. 1943)

Opinion

May 17, 1943.

In an action to foreclose a mortgage, respondents contend that there had been a payment on account of the principal indebtedness. On that issue the court found in their favor. Judgment affirmed, with costs. No opinion. Appeal from the exceptions to the findings of fact and conclusions of law dismissed.

Close, P.J., Hagarty, Johnston and Lewis, JJ., concur;

Adel, J., dissents and votes to reverse the judgment and to direct judgment in favor of the plaintiff as prayed for in the complaint, with the following memorandum:

The finding that the mortgagor in her lifetime paid $2,000 on account of the principal sum of the mortgage debt is against the weight of the evidence. The conduct of the mortgagor in paying interest on the total principal sum from the time the receipt for the payment of $2,000 on account was alleged to have been made, which covers a period of over six years and until the mortgagor's death, negatives the proof of payment, evidenced only by the said receipt.