Westervelt v. . Ackley
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of defendant entered upon a decision of the court at Special Term. (Reported below, 2 Hun, 258; 4 T. & C., 444.) This action was brought to have a deed of certain premises in the city of New York, executed by plaintiff and Cornelius Westervelt, her husband, to defendant, declared a mortgage and for leave to redeem.
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Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of defendant entered upon a decision of the court at Special Term. (Reported below, 2 Hun, 258; 4 T. & C., 444.) This action was brought to have a deed of certain premises in the city of New York, executed by plaintiff and Cornelius Westervelt, her husband, to defendant, declared a mortgage and for leave to redeem. The answer admitted the conveyance and alleged that it was intended to be, and was, an absolute conveyance, and as a counter-claim set up a lease of the…
1Opinion of the CourtMiller, J.
The question whether the deed executed by the plaintiff and her husband, and delivered to the defendant, was intended as a mortgage, was a question of fact, in regard to which the testimony was ' conflicting. The case is not one where the undisputed facts are of a character which stamp the transaction on its face, so that oral testimony may be disregarded entirely; and in view of all the circumstances it cannot fairly be claimed that there was such a preponderance of evidence in favor of the plaintiff as demanded a reversal of the decision in this respect, or that the finding of the court…
2Cases cited1 opinion
- Prevot v. . LawrenceNew York Court of Appeals · 1872
3Cited by4 opinions
- Ackley v. . WesterveltNew York Court of Appeals · 1881
- Herrington v. . RobertsonNew York Court of Appeals · 1877
- Kriz v. PeegeWisconsin Supreme Court · 1903
- Broome v. TaylorNew York Supreme Court · 1878