Dunham v. . Cudlipp
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made on the 23d day of December, 1881, which affirmed a judgment in favor of defendant Cudlipp, entered upon a decision of the court on trial at Special Term. The action was commenced November 1, 1878, for the foreclosure of a mortgage.
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Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made on the 23d day of December, 1881, which affirmed a judgment in favor of defendant Cudlipp, entered upon a decision of the court on trial at Special Term. The action was commenced November 1, 1878, for the foreclosure of a mortgage. The complaint states that the defendant Cudlipp, for the purpose of securing the payment to Daniel and Elias Herbert of the sum of $4,000, on the 16th of December, 1875, executed and delivered to them a bond and mortgage conditioned for the…
1Opinion of the CourtDanforth, J.
We are of opinion that the plaintiff should succeed upon this appeal.
First. The finding of the learned judge at Special Term that the bond and mortgage in suit were never delivered to the mortgagees cannot be sustained. The complaint expressly avers the delivery of the bond and mortgage to the mortgagees named therein, and the answer admits it. It was a fact in the case, therefore, and for all the purposes of the action to be taken as true. (Code of Civ. Proc., § 522; Fleischmann v. Stern, 90 N. Y. 111; White v. Smith, 46 id. 418.) If the case had been tried upon the merits, without reference…
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