Chrimes v. Squier , 74 N.Y. St. Rep. 806 ( 1896 )

BARRETT, J.

The decision rendered in this case at special term was correct," and we entirely concur in the opinion there handed down by Mr. Justice PATTERSON. The testimony of the mortgagor, Austin, upon which the plaintiff relied, was unworthy of credence. It was shaken, not only in collateral matters, but in much that was material to the direct issue of forgery. The mortgagee (one Ker) was the same person who had. previously deeded the property to Austin. The, mortgage was assigned by Ker to one Savage, and by Savage to the defendant. Savage was the notary public whose certificate of Austin’s acknowledgment is appended to. the mortgage. The relations between Austin and Savage were, under the circumstances, most material. We cannot agree with the appellant that the cross-examination upon this head was upon collateral or immaterial matters. It was direct and important. Austin plainly saw its materiality, and tried in every possible way to conceal his relations with Savage. He equivocated, suppressed what he knew, and, when closely questioned, falsified outright. To sustain the plaintiff’s charge, Austin’s testimony should at least have been clear and convincing. It was the reverse; and, further, it was entirely unsupported. Not another witness was called to sustain the charge. Austin’s wife was not examined, nor was a single person who had ever seen him write. Upon the other hand, we find that in 1892 he made an agreement with the defendant for the settlement of an action which he had previously brought,—similar to the present,—and that that action was thereupon discontinued. This agreement impliedly recognized the mortgage, and makes provision • for the application to its payment of whatever might be realized upon a sale of the property oyer and above $4,500. It is difficult to understand how a man who honestly believed that this mortgage was a forgery could have made such an agreement. His subsequent conduct indicates bad faith, even with respect to this agreement. Doubtless believing that he was estopped thereby from renewing his charge of forgery, he sought to evade the effect of the agreement by quitclaiming the property for a nominal consideration to the present plaintiff, and bringing this action in the latter’s name. It is entirely clear that this was his design, and that he is still the real owner of the property, using the plaintiff to effect his inequitable purpose. The case is wholly without merit, and the judgment appealed from should be affirmed, with costs. All concur.