Allen v. . Judson
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee. The nature of the action and the facts appear sufficiently in the opinion. Plaintiff was entitled, in case the boat could not be delivered, to only the amount of his mortgage debt and interest, and the necessary expense of taking the property and caring for it.
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Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee. The nature of the action and the facts appear sufficiently in the opinion. Plaintiff was entitled, in case the boat could not be delivered, to only the amount of his mortgage debt and interest, and the necessary expense of taking the property and caring for it. (Parish v. Wheeler, 22 N. Y., 494; Chadwick v. Lamb, 29 Barb., 518; Dewit v. Morris, 13 Wend., 499; Sedgw. on Dam. [1st ed.], 525, 523; id. [2d ed.], 502.)
1Per curiam
This was an action to recover possession of a canal boat, mortgaged by O’Grady, defendants’ cestui que trust, to the plaintiff for $300 and interest. Defendants alleged payment of $250 on the mortgage and tender of the balance. The questions litigated on the trial were, whether two payments had been made by O’Grady — one of $100 at Oswego, and one of $150 at Albany — to apply on the mortgage, and upon these questions the evidence was very conflicting. The referee found that the payments had not been made, and the evidence fully justified the findings. We have examined the numerous objections…
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