
    McSorley v. Hughes et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 10,1890.)
    1. Payment of Mortgage—Sufficiency of Tender.
    Plaintiff having applied to defendant for a loan, the latter made certain advances, on plaintiff conveying to him as security certain real estate, by deed absolute in form, defendant executing an agreement to sell and convey the property to plaintiff upon the latter paying a specified sum on or before a certain date. Plaintiff was unable to make such payment on that date, but made tender of the amount some weeks afterwards. Held, that the transaction was a loan, and that, defendant not having taken proceedings to cut off plaintiff’s right to redeem, he was entitled to have his tender accepted, and the property reconveyed.
    3. Equity—Admission of Evidence—Appeal.
    The improper admission of testimony on the trial of an equity cause, before the court, is no ground for reversal.
    Appeal from county court, Richmond county.
    Action by Edward McSorley against Brian G. Hughes and Josephine S. Hughes, his wife, and Godfried Gallineck, for specific performance of a contract to sell and convey certain real estate. The property had formerly belonged to plaintiff, and had been conveyed by him to defendant Brian G. Hughes, by a deed absolute in form, upon, said Hughes making certain advances of money to meet obligations of plaintiff, for which purpose plaintiff had previously applied to Hughes for a loan; and, at the time of the execution of the deed, an agreement in writing between Hughes and plaintiff was executed, whereby Hughes agreed to sell and convey, and plaintiff agreed to purchase, the premises, for a specified price to be paid by plaintiff “on or before the 30th day of June, 1887, ” a part in cash, and the remainder by paying off certain judgments against plaintiff which were liens on the property. Plaintiff was unable to, and did not offer to, make such payment until on or about August 5,1887, at which time he paid off and discharged the judgments mentioned in the agreement, and tendered to Hughes the amount of the cash payment and interest, which the latter refused. Thereupon plaintiff brought this action for a specific performance of the contract. Defendant Gallineck was a tenant in possession at the time of the commencement of the action, and did not appear therein. From a judgment for plaintiff, entered upon trial by the court, defendants Hughes appeal.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ
    
      Hays, Greenbaum & Schram, for appellants. Lyman L. Settel, for respondent.
   Pratt, J.

The testimony fully sustains the findings of fact. The transaction was clearly a loan of money. The papers executed must be regarded as security for a loan. - At the expiration of the time of payment, defendant, if he desired to cut off plaintiff’s right to redeem, should have filed a bill for that purpose. Hot having done so, plaintiff’s tender was made in due time, and should have been accepted, and the property reconveyed. Some exceptions were taken to the admission of testimony, and it is urged that a new trial should be granted upon that ground; but that has never been the practice in equity. Under the ancient practice, testimony in equity was taken before an examiner, who took all that was offered, and the chancellor decided ■upon the case so brought before him. Under that system, there could not well be any question as to the proper reception of testimony. The judge was supposed to know what testimony was proper, and what should be disregarded, and the recent practice of taking,testimony in equity cases before the ■court has not so changed the rule as to make the improper reception of evidence a ground of reversal. Forrest v. Forrest, 25 N. Y. 510. The proofs abundantly sustain the judgment, which must be affirmed, with costs.  