
    Edvard McSorley, Resp’t, v. Brian G. Hughes et al., Impl’d, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    1. Sfecibc performance—Contract to reconvey—Tender.
    Plai tiff desiring a loan to settle a foreclosure action, defendant Hughes advantd the amount to him on a conveyance of real estate, giving back an agrément to reconvey upon payment, on or before the 30th of June, of the aipunt advanced and certain judgments on the property. Plaintiff, by the dytii of his attorney, was prevented from making the payments within th time specified, but the day before the time specified defendant told him t go on and pay the judgments and see him again. Plaintiff procured %ney, paid the judgments and made a tender to defendant in August. 1 an action for specific performance of the agreement, Held, that if deferant desired to cut off plaintiff’s right to redeem he should have filed a ip for that purp se; and that not having done so, the tender was in time aj should have been accepted and the property reconveyed.
    2. Evidence—Eq?ty.
    In equity actng tjle improper reception of evidence is not ground for reversal.
    Appeal from jdgment of Richmond county court in favor of plaintiff.
    Action for specif performance of a contract relating to real property. The facV sufficiently appear in the opinion of the county judge, which'ffibws:
    Stephens, J.—Thisg an action brought by the plaintiff against the defendant Brian «"Hughes and wife for the specific performance of a contract rnade.y ancj between the plaintiff and said defendant Brian G-. Hughe^n -the 22d day of December, 1886, and for a conveyance of certa\ premises situate in the village of Port Richmond, in the county Richmond, to the plaintiff by said Brian Gr. Hughes and wife^d for other relief.
    The defendants answer i%at a law day was fixed by said contract, to wit, the 30th day of June, 1887, on or before which day. said contract was to be performed on the part of the plaintiff, and deny that the time for the performance of said contract was ever extended. On the other hand, the plaintiff claims that such time was extended by the defendant Brian Gr. Hughes.
    By the evidence offered upon the trial it appears that the plaintiff, Edward McSorley, prior to December 22, 1886, was the owner, in fee simple of certain premises situate at Port Eichmond, Staten Island, the value of which at that time, as testified to by Alfred Z. Eoss, a recognized expert upon the values of real estate or Staten Island, was $18,000. These premises were encumberel by a mortgage to secure the payment of the sum of $8,000 to tic Mutual Life Insurance Company of the city of New York, upen which was due the sum of $400 for interest. • There were alo docketed in the office of the clerk of Eichmond county th'ee judgments against said McSorley for the respective sums of $697.01, $1,729.24 and $1,729.24. A foreclosure of said mortgage had been begun and some expenses had accrued thereipon and there were some taxes due upon the premises anounthg together, including the interest due upon said mortgage ($4(0), to the sum of $1,167.24, making the total amount of the liens gainst said premises the sum of $13,322.73, and leaving at that <me an equity in said premises of $4.777.27.
    On the 22d day of December, 1886, McSorley conv^ed said premises to the defendant Brian Gr. Hughes by a warrpty deed and on the same day a contract was made and executd by and between said Hughes and McSorley, "whereby it was aTeed that McSorley, on or before the 30th day of June, 1887, w¿ to pay to Hughes in cash the sum of $1,392.24,being the amount (theseveral liens before stated for interest, taxes, costs of foreclcure, to wit: $1,167.24 and $225 bonus or brokerage, and also tcpay the three several judgments before mentioned, whereupon sal Hughes was to execute and deliver to said McSorley a bargainand sale deed of said premises free from all incumbrances excfet the mortgage for $8,000 as aforesaid.
    McSorley did not receive personally any portD of the sum of $1,392.24. Whatever was paid out of it was pal by Hughes himself. Hughes entered into possession of the p-Jnises on the first day of January, 1887, and has continued in pension thereof ever since, receiving the rents therefrom.
    McSorley testified that he was about nego^ting a loan to pay Hughes the amount called for in the ccorach through a Mr. Hall, an attorney, in May, 1887, and so sta ^ to Hughes and told him that he “wanted time for about a weh probably a week or two,” and Hughes said, “You can go orand get the loan and come back again, and I will see you.” ^r. Hall died on the 2d ' day of June, 1887, so that the negotis011 fed through. McSorley then applied to a Dr. Groff for a In ^or the same purpose. He then testified that about the 28tlW Jruie, 1887, he and Dr. Groff went to Hughes’ office and t1 doctor explained to him (Hughes) that he was getting the ln through to pay off these judgments, and he wanted a littlfe ore time; he told the doctor to “go on and execute the loan and pay off the judgments, and come and see him; that he would extend the time.”
    Dr. Cleveland W. Goff testified: “ On the 28th of June, a little "before 12" o’clock, I went up with Mr. McSorley to Mr. Hughes’ office on Centre street. "We met Mr. Hughes in his office, or store-room. I said, 1 Mr. Hughes, I came here with McSorley. Mr. Hall is dead. The expiration of the time to redeem some property is about around as I understand; it is impossible for inc to get the loan for him to pay off these judgments. within the time without great loss to Mr. McSorley.’ I stated to him that I had been employed by Mr. McSorley and was trying to procure him this loan. I told Mr. Hughes that I was trying to get the loan on the whole property. He told me to go along and mike my loan, pay off the judgments against it, and then he would come around and I could see him; that all he wanted was legil interest. He said, * Go on, make your loan.’ He referred meta his attorney, Mr. McAdam. I went and saw Mr. McAdam at lys office. He told me that they were about commencing a . suit p sell it out, but, if I was sure abont the loan, he would wait. I told him I had been working for two weeks; that I was sure d, the money.” Dr. Goff testified that he saw Hughes frequently after the 30th of June, 1887, and that “he invariably told me that he would return the property as soon as the judgments were pad off.” That subsequently he made a tender to Hughes of $l,40f (about the 3rd or 4th of August), the full amount stipulated,to be paid in cash, to wit: two five hundred dollar gold certificate!, four one hundred dollar bills, and the balance in silver. Tka\on the 5th of August, 1887, he paid the three judgments, whih were duly satisfied of record, in the office of the clerk of thejounty of Eichmond, which fact also appears by the certificates <\ the clerk of the county of Eichmond offered in evidence; th^ he informed Hughes that he had paid the judgments, and agin tendered him the amount to be paid in cash, which coveredfil the claims that Hughes had made. He further testified that Hghes told him “he got $225 for loaning the money.” That Ven he demanded from Hughes the deed of the premises, and thi^ke promised he would give it to him.
    The testimony f the defendant Hughes flatly contradicts the testimony of Dr. h>ff, so far as the same relates to an extension of the time within foich the contract was to be performed, and also as to a tender o, foe amount to be paid in cash; also, as to-his promise to reconW foe premises after the 30th of June, 1887, although he admits tKt p>r. Goff called upon him several times in regard to the matte! phe question now is, to whom credence is to be given. It is ai-,nfoSputed fact that the defendant Hughes is a sharp and shrewd Wn¡ whereas foe plaintiff McSorley is a dullard, and a ready victi. for such a person as Hughes to fall in with. We need go no fufler to confirm this fact than the testimony of the two themsehg given -upon the trial of this case. McSorley was sadly_ presse\for money, and, without fully realizing the force of his act, ^Veyed his property to Hughes, and then made and executed the fo question in order to tide Mm over his immediate embarrassment. Was there a distinct understanding by. both, parties that if the . contract was not fulfilled to the very letter that McSorley should be deprived of his property? On the part of Hughes, yes, but on the part of McSorley, clearly no. Had McSorley been left alone, such undoubtedly would have been the result; Fortunately for him, however, Dr. Goff came to his aid. His testimony is strong and emphatic; and, taking that in connection with the testimony of McSorley himself, I think the weight of evidence is in favor of the plaintiff; and, with this view of tie case, I think it is fair to conclude that the defendant agreed to extend the time within which the contract might be performid. This was unmistakably the understanding on the part of the plaintiff and Dr. Goff, else why did they go on and pay the judgments specified in the contracts, amounting to $4,155.49, thereby increasing the equity in the premises to $8,707.76, which Hughes was to acquire for the paltry sum of $1,392.24 ? Had an action been brought in a court of equity to declare the deed iron Mc-Sorley to Hughes to be a mortgage and only given as secuity for a loan, upon the evidence as here adduced there is no doubt but that a decree accordingly would have been granted. Thf plaintiff, however1, sought his remedy in the county court, uncir § 340 of the Code of Civil Procedure, and there is no questjm about the jurisdiction of the court to, enforce this contract. This right has been recognized and affirmed by the supreme cour, holding that in such a case the county court has the same equi*ble power as the supreme court. See Williston v. Williston, 41 Barb., 635.
    This contract, in its inception, was usurious, as ifis clear that the defendant Hughes expected to receive the am of $225 for an advance of $1,167.24, but the plaintiff waled the usury, • as he had a right to do, and asks to show the transction, and demands the performance of his contract. He had th right to show that it was not the intention of the parties at thftime of the execution of the contract that he should forfeit hi property, and I think the facts do show this. ¡
    
    While it is true that paroi evidence is not cmpetent to vary a contract in writing, nevertheless it is always ompetent to show what the true contract was; and, evidence o tbe whole transaction being given, the court will declare the ontract and enforce it. See Medlér v. Darrin, 50 N. Y., 437; ,soi Horn v. Keteltas, 46 id., 605.
    It is competent for the parties to a written contract, even though under seal, to waive or extend time of performance by paroi. Esmond v. Van Benschoten, lf Barb., 366; also Stone v. Sprague, 20 id., 509.
    A new consideration is not necesa’7 to give validity to an agreement to extend the time; the wa3r i® enough for that purpose. The effect of such enlargement® *9 substitute and to adopt the extended time for the time spec^ i11 *he original contract. It then stands as a new agreement herein the mutual promises furnish a good consideration. Gla' v- Dales, 20 Barb., 42. ^
    ^ I think it is the duty of the cc'*' *° sustain the plaintiff in his facts. Let a decree be entered that the plaintiff pay to the defendant, Brian Gr. Hughes, the sum of $1,392.24, with lawful interest thereon from the 30th day of June, 1887, within sixty days after the entry of judgment in this action, and directing a reference to settle and determine the amount due between the parties by reason of the rents and profits arising out of the premises in question, for which judgment shall be entered as found by the report of the referee; and further directing that upon the default of the payment by the plaintiff to the defendant, Brian Gr. Hughes, of said sum of $1,392.24, with interest as aforesaid, within said sixty days, that he be forever barred from the privilege of performing said contract on his part.
    
      Hays, Qreenbaum & Sehram, for app’lts; Lyman & Settel, for resp’t.
   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 re-conveyed.

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.

Barnard, P. J., and Dykman, J., concur.  