
    Fourth Department,
    January, 1934.
    Nathan A. Weiss, as Receiver of a Certain $15,000 Bond and Mortgage, Respondent, v. Liberty Bank of Buffalo, Appellant.
    
    
      
       Affd., 264 N. Y. 646.
    
   Judgment and order affirmed, with costs. Memorandum. While there were parts of the charge, as for example, that “ The burden would be on the defendant to show that it was warranted in retaining that mortgage because the law says that it belongs to the plaintiff and the plaintiff should have possession of it,” which in and of themselves were subject to criticism, yet taking the main charge and the final rulings on request together and giving consideration to the unquestionable and adjudicated right of the plaintiff to the possession of the property involved, we deem these irregularities innocuous. All concur, except Crosby, J., who dissents and votes for reversal on the law and for granting a new trial on the ground that there was error in the charge that after plaintiff’s showing the demand upon defendant for the mortgage and defendant’s refusal to surrender, the burden was on defendant to justify its refusal, and for reversal on the facts on the ground that the jury’s finding of $10,000 damages is against the weight of the evidence, it being undisputed that there were two mortgages ahead of the one in suit, interest on which was in default, that there were $7,000 or thereabouts of unpaid back taxes on the property covered by the mortgage, and that the gross income of the property was insufficient to pay interest on prior mortgages and that executions against the mortgagee were being returned unsatisfied. This testimony was not outweighed by the perfunctory testimony of experts that the mortgage had any substantial value.  