
    Deloss Penny, Resp’t, v. Susanna Heubener, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Promise to fat—When legal presumption of does not arise.
    This action was brought to recover upon a promise of the defendant to pay a debt owing by the plaintiff, and the former set up a counterclaim for money paid as follows: An action for the foreclosure of a mortgage, upon lands owned by the wife of the plaintiff, was pending, and this defendant, who was the mortgagee, had transferred the mortgage to a third party, who, in the proceeedings for foreclosure, made her a party defendant. The defendant herein claims that she, at the plaintiff’s request, and upon his promise to repay the same to her, advanced the holder of the bond and mortgage the amount due thereon to secure the discontinuance of the proceedings. Held, that as the plaintiff was not the owner of the premises embraced in the mortgage, and under no obligation to pay the debt secured thereby, the law did not infer that the money was paid at his request, with an understanding that he should refund the same, and that he was not under any equitable obligation to repay the money advanced by the defendant.
    2. Question of fact—When not reviewed on appeal from judgment.
    
      Held, that a determination made, by the trial court, on conflicting evidence, would not be disturbed on appeal from a judgment.
    
      3. Appeal—Objection not raised on trial cannot be taken on APPEAL.
    
      Held, that upon appeal from a judgment, objection could not be taken to the failure of the reply to put the counterclaim in issue, that point not having been raised on the trial.
    Appeal from a judgment entered upon the decision of the Erie county court, in an action tried by the court without a jury. The judgment was in the plaintiff’s favor for the sum of $70.50 and $95.32 costs.
    
      Adelbert Moot, for app’lt; Myron H. Clark, for resp’t.
   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, and that she had not kept the same, but seeks to diminish the amount of the recovery by setting up a counterclaim, 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 sixty-four dollars.

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. Still-well, 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 plaintiff 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 plaintiff 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.  