
    Wenzel v. Miller, appellant.
    
      Evidence—declarations of mortgagee—when admissible against subsequent holder of mortgage.
    
    In an action to set aside a mortgage as usurious, held, that it is not altogether clear but that what a mortgagee declares in the presence of the mortgagor, at the time of the execution of the instrument, touching the consideration, may be admissible in evidence even against a subsequent holder, ás part of the res gestee.
    
    Appeal from a judgment in favor of plaintiffs entered upon the report of a referee. The action was brought in Kings county by John Wenzel and wife against Christopher Miller and another, to set aside a bond and a mortgage on the ground of usury.
    
      Hatch & Bemville, for appellants.
    
      Tracy, Gatlin & Brgdhead, for respondents.
   Talcott, J.

The finding of the referee that the mortgage was usurious was upheld upon the ground that there was evidence sufficient to sustain the finding. The head-note states all that is material for publication in the opinion.

Judgment affirmed.  