
    Edward Dodd, Respondent, v. Permelia M. D. Averill, Appellant, Impleaded with Others.
    
      Duress — a pcm'ty may testify to its effect upon his mind — wliat facts do not constitute duress.
    
    In support of a defense that an instrument was procured by duress, it is proper to show that the duress operated upon the party who executed the instrument in such a manner as to overcome his will, and the party upon whom the duress was practiced may testify ás to the effect produced upon his mind by the duress.
    Facts considered which do not justify the conclusion that legal duress was exercised.
    
      Appeal by the defendant, Permelia M. D. Averill, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 4th day of May, 1896, upon the decision of the court rendered after a trial at the Mew York Special Term.
    The action was brought to foreclose a mortgage upon real estate.
    
      W. T. B. Milliken and James K. Averill, for the appellant.
    
      Lawrence Kneeland for the respondent.
   Ingraham, J.:

We think the consideration moving from Dodd, the plaintiff, to the appellant’s son, was ample to sustain the mortgage sought to be foreclosed, and the only question in the case is whether or not there was evidence to sustain the finding that the mortgage was given under duress. If there was evidence to sustain that finding, there was material error in sustaining the objection to the question put to the appellant by which she was asked to state the effect produced upon her by the statement of her son that the plaintiff would have her son arrested unless the mortgage was executed.

It is a material element in a defense that an instrument was procured by duress to show that the duress operated upon the party executing the instrument so as to overcome the will; and it is well settled, in such a case that the party can testify as to the effect produced upon his mind by the duress. The record shows, however, that the appellant was allowed to state all the communications made to her by her son, and if, upon the statement made, the court was justified in finding that the instrument was not executed under duress, then the condition of her mind was not material. The evidence shows that the defendant was applied to by her son to execute the mortgage in question; that she at first refused, and was then told by her son that the plaintiff “would go on the floor of the Exchange the next day and have him arrested and put in prison, and of course to save him the disgrace I signed it. It was to. save him the disgrace.” The son also testified to having made the same statement to his mother, and further testified that the plaintiff made the threat to him. That, however, the plaintiff denied, and the finding of the judge was sustained by the evidence, assuming that he believed the plaintiff rather than the defendant’s son.- The only .evidence to sustain the allegation that the bond and mortgage were procured by duress, is the testimony of the defendant and her son. The testimony of the son was discredited by other testimony, and by the position which, from his own statement,- he voluntarily assumed in endeavoring to swindle his mother, and also the man. who had so greatly befriended him.

The defendant, the mortgagor, "was -largely interested in the result of the trial. Her story bears upon its face, evidence that the fear produced by the statement of her son has been, exaggerated, and of the benefit that she hoped to obtain from discounting the notes which were given at the same time, and which, it is quite evident, were discounted by the plaintiff as a part of the same transaction and as consideration for -the delivery of the mortgage.

' The trial court has found that when the mortgage was signed the defendant, made and gave to her son notes to the amount of fifteen hundred dollars, which Dodd was to cash or discount, she expecting to receive part of the proceeds. I do not think a conclusion of legal duress can be drawn- from this evidence. It seems more consistent that the defendant exercised her volition, actuated in more or less degree by -her expectation of a portion of the money to be had from Dodd on her notes.”

We cannot say that the testimony of the defendant and her son is so conclusive as to justify us in reversing this judgment on the ground that this finding of fact is against the weight of evidence.

The judgment must, therefore-, be affirmed, with costs.

Van Brunt, P. L, Williams, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  