
    Ursley Rowley, as Administratrix with the Will Annexed of Levi Rowley, Deceased, Respondent, v. Amantha J. Parsons and Others, Defendants, and Stephen M. Parsons, Appellant.
    
      Evidenae-r-a question, the answer to which involves a conclusion, will be disallowed — a question is properly disallowed where it is competent in part and -incompetent as a whole.
    
    In an action brought for the foreclosure of a mortgage, in which a defense is interposed of an overpayment under a mistake of fact, the defendant should not he allowed to answer the question, “When did you discover that you had been paying on these mortgages under this erroneous impression, and that you had been paying money that you ought not to pay ? ” as the answer thereto Would involve a conclusion upon the issue in the action.
    Where the question propounded is, as a whole, incompetent, although a portion of it, standing alone, is allowable, a ruling sustaining an objection thereto will not he disturbed on appeal.
    Appeal by the defendant, Stephen M. Parsons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 9th day of August,, 1899, upon the report of a referee.
    The action was brought to foreclose two mortgages. The defense alleged overpayment under a mistake of fact. ■
    E. C. Wright, for the appellant.
    
      O. M. Reilly, for the respondent.
   Hardin, P. J.:

Plaintiff, having placed in evidence bonds and mortgages and the evidence of legal title to the same, made a prima faoie case for recovery.

Defendant alleges an excessive overpayment under a mistake of fact and claims to be allowed for such alleged mistake and alleged overpayment.

To support the contention of the plaintiff as to the amount due upon the mortgages the witness Reilly was called, who testified that in 1890 the defendant, Parsons, and the then owner of the mortgages, Lucretia Rowley, met in his office and entered into a computation of the amount due upon the several mortgages and agreed upon the balance which was struck and evidenced that agreement by a written instrument executed by the defendant, Samuel Parsons. The evidence of Reilly as to the circumstances of the computation — ascertainment of the amount due anteceding the execution of the written admission thereof by Parsons — is in no manner contradicted by any evidence found in the case. After the execution of the instrument admitting the amount due in 1890, to wit, $3,379.37, the defendant, Parsons, made several payments of interest and subsequently made admissions indicating that there was that sum in arrear upon the mortgages.

The evidence so strongly supports the contention of the plaintiff that we do not feel at liberty to interfere with the finding in that regard made by the referee. (Roosa v. Smith, 17 Hun, 138.)

(2) The defendant claims that there was error in disallowing questions propounded to the defendant, Parsons.

(a) Appellant complains that there was an error in excluding the following question put to the defendant,. Parsons, to wit: “ Q. When did you discover that you had been paying on these mortgages under this erroneous impression, and that you had been paying money that you ought not to pay ? ” To that question the following objections were made,improper, ■ incompetent, assumed facts not proven.” The objections were sustained and an exception taken. If the referee had received the evidence called for by the question the witness would have been enabled to state (1) that he had discovered that he had been paying on mortgages under an erroneous impression, and (2) that there was, in fact, a mistake, and he, therefore, would have been permitted to testify to a conclusion upon the important issue that was before the referee for determination. The ruling made by the learned referee was not erroneous.

(b) The witness Parsons was asked the following question: “ Q. When did you first discover that the $1,443' mortgage given by your son, George Parsons, to you, and assigned by you to Mr. Rowley, should have been but was not indorsed as a payment to reduce the amount of the two mortgages in this suit ? ” To that question the plaintiff interposed the following objections, “ improper, incompetent, inadmissible under Section 829 of Code of Civil 'Procedure.” The referee sustained the objections- and the defendant took an. exception. Had the referee allowed the question to be answered the witness would have been enabled to state -that there was a mistake and to speak of a transaction held with a deceased party. We must look at the question as it was propounded ;■ and as the question as a whole was not competent, although some portion of it, if standing alone, might have been allowable, we are not at liberty to say that the ruling made by the referee against the question in whole as it was propounded is erroneous.

If one mortgage was collateral to the other the defendant was unfortunate in not discovering such to be the fact at an earlier date. He was unfortunate in making admissions that he was indebted on' both mortgages to the holder of them. He was unfortunate in making declarations of the extent of his indebtedness, and by the death of the holder of the mortgages he is unfortunaté in not being able to testify to a transaction had with a deceased party and give his explanation of it.

Considering all the evidence found in the appeal book, we do not feel at liberty to interfere with the findings made by the referee. Having discovered no reversible error in the course of the trial before him, we are led to the conclusion that his report should be sustained.

All concurred.

Judgment affirmed, with costs.  