
    Penny v. Huebener.
    
      (Supreme Court, General Term, Fifth Department.
    
    October, 1888.)
    1. Appeal—Review—'Weight of Evidence.
    In support of defendant’s counter-claim, a witness testified that, at plaintiff’s personal request, he borrowed from defendant a sum of money, and paid it out for plaintiff’s benefit. Plaintiff testified positively that he never requested the witness to procure the money from defendant. Held, that plaintiff’s testimony amounted to a denial of what the witness had testified, and that the trial court’s finding on the point would not be interfered with on appeal.
    
      2. Same—Objection not Raised Below.
    The point that a counter-claim was not disputed by the reply cannot be raised for the first time on appeal, after trial.
    Appeal from Erie county cpurt; William H. Hammond, Judge.
    This is an appeal by the defendant, Susanna Huebener, from a judgment in favor of the plaintiff, Deloss Penny, for the sum of $70.50, and $95.32 costs. Appellant complains of the action of the county court in finding that the counter-claim set up by her was not supported by the evidence.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      Adelbert Moot, for appellant. Myron H. Clark, for respondent.
   Barker, P. J.

The" plaintiff’s cause of action was upon the defendant’s promise to pay a debt owing by the plaintiff, which had passed into a judgment against him in favor of Thomas Murray, for the sum of $70.50. The defendant in her answer admits making the promise, but seeks to diminish the amount of the recovery by setting up a counter-claim, which was disputed by the plaintiff, and disallowed by the trial court. The foreclosure was pending, and the lands owned by the wife of the plaintiff, and at the time stated in the answer the interest and costs amounted to $64. The defendant was the mortgagee, who had transferred the mortgage to a third party, who in the foreclosure proceedings made her a party defendant. The defendant claims that she, at the plaintiff’s request, and upon his promise to repay the same to her, advanced to the holder of the bond and mortgage the interest and costs for the purpose of securing the discontinuance of the foreclosure proceedings, and such alleged promise constitutes the counter-claim. The defendant called and examined a witness, who testified in positive terms that he, at the personal request of the plaintiff, procured from the defendant $64.15, and paid the same over to the attorney who was conducting the foreclosure proceedings, to secure a discontinuance of the same. The plaintiff was called as a witness in his own behalf, and positively denies that he requested Mr. Stillwell, the defendant’s witness, to secure the money of the defendant to pay up the costs and interest. He admits that he called on Mr. Stillwell on one occasion with his wife, and that she had a conversation with him relative to the foreclosure proceedings. The counsel for the appellant insists that the plaintiff in his evidence does not dispute the statements made by the defendant’s witness. We do not concur in this suggestion, as to the effect of his evidence, and think that it, in terms, is a denial of the material part of the statements of the defendant’s witness. The learned county judge refused to find, as requested by the defendant, that the plaintiff made the promise set up by the defendant in her answer. All of the defendant’s evidence is found in the testimony of this one witness, who is her attorney of record in this action. As the plantiff was not the owner of the premises embraced in the mortgage, and was under no obligation to pay the debt secured thereby, the law does not infer that the money was paid at his request, with an understanding that he should refund the same; nor was he under any equitable obligation to repay the money advanced by the defendant. The defendant cannot recover without proving a specific promise by a fair preponderance of the evidence. As evidence was given on both sides of the issue, it was for the trial court to determine whether the defendant sustained her alleged counter-claim by a fair preponderance of evidence. It is not a case permitting.of an interference by this court with the conclusions of the court below on questions of fact.

The appellant’s counsel contended in his written argument that the plaintiff’s reply did not put in issue the answer setting up the counter-claim. That it does not comply with the rules of pleading cannot be raised on this appeal, as on the trial the point was not made that the counter-claim was not disputed by the reply. Judgment affirmed, with costs. All concur.  