
    Mary Reilly, Appellant, v. George Haseltine, Respondent.
    (Nos. 1 and 2.)
    Second Department,
    June 12, 1908.
    Fraud' — action to set aside mortgage—^pleading — variance — estoppel —presumption as to signature — newly-disdovered ¿vidence.
    Under a complaint seeking to set. aside a bond and,mortgage as induced by fraud and alleging in substance that the plaintiff'gave real estate "h'rokérs money to purchase certain lands, that they purchased th'd same in the name of a dummy and through him sold it- to the plaintiff for a much larger sum; inducing her to; • give hack the mortgage for the balance of the price, there pan.be no recovery •where the evidence shows that the plaintiff employed the: defendants to .purchase an,entirely, different piece of land and the title being found defective, sold her another lot which théy had already purchased in the name of a third person, and-that the plaintiff had knowledge of all said, facts. Under tlie circumstances there was a fatal variance between the pleading and the proof.
    A certificate of estoppel in which plaintiff acknowledged that the mortgage in question was a valid obligation, the signature of which is duly certified by a commissioner, with all the formalities required to make it competent evidence, is presumptively Valid, and a mere denial by the plaintiff that she signed the same is insufficient to overcome the presumptions.
    Expert testimony which was.-just as available before as after trial, is not newly-discovered evidence which warrants a new trial.. - ' ,
    ■ Appeal by the plaintiff, Mary Reilly, in one case, from a judgment of the Supreme Court in favor of the .defendant, entered in the office of the cleric of the county of Richmond' on the 16th day óf August, 1907, upon'tlie decision of the court, rendered after a trial at the Richmond Special Term, dismissing the'complaint upon the- merits, and in the other case from an'order entered in said clerk’s office on the 19th day of November, 1907, denying the plaintiff’s motion for a new tidal maid's, upon the' grounds.of surprise^ newly-discovered evidence, etc. ’ /’• ■
    
      
      Hobart S. Bird, for the appellant.
    
      William F. Clare, for the respondent.
   Woodward, J.:

This action was brought to set aside a certain bond, and to set aside and cancel of record a certain mortgage for $2,500, signed by the plaintiff, delivered to one Harlow IT. Chandler, and duly assigned to the defendant. The basis of the action is fraud, it being claimed that by reason of the fraudulent transaction the bond and mortgage in question are without consideration, and singularly enough the plaintiff calls as a witness the very man wlio is alleged ■ to have perpetrated the fraud, and by him establishes that there was no such fraud, for while the plaintiff herself gives some ■ testimony tending to establish the cause of action, her own witness says that the transaction complained of was simply one between the plaintiff as a purchaser and himself as a vendor, under circumstances that exclude the idea of fraud. It is quite common, when people have failed to realize all that they have contemplated in a transaction to alleged fraud, but it is still necessary to go beyond the point of allegation ; there must be proof. It appears from the pleadings and the evidence that the plaintiff employed one Hodgskin and his partner (the latter not acting to any great extent) to purchase certain real estate, Hodgskin receiving a commission upon such purchases. It is doubtless true that the plaintiff placed great reliance upon Hodgskin, but the evidence discloses only special agencies in reference to particular pieces of property. The theory of the complaint is that the plaintiff gave to her brokers the sum of $2,450 to purchase for her a lot of land in Richmond county, known as the “Andróvette lot; ” that they purchased the same-in-the name of a dummy for $2,250; that they sold the same through their dummy to the plaintiff for $4,950, and induced the plaintiff to give a mortgage thereon for $2,500 without consideration, upon receiving a conveyance of the lot from the dummy; that this is the mortgage involved in this action, and that the defendant took an assignment of the same subject to the equities. But the proof is that the plaintiff employed the brokers to purchase a piece of property known as the Wood lot, an entirely different piece of property; that. the brokers negotiated for’ the same in her behalf for $4,200 ; that .she gave them $500 on ■ account of the' purchase; that they secured a contract, by the terms of which they were to pay $1,950. on the. closing of the contract, with a mortgage for $1,750; that,, subsequently it was discovered that there was a defect in title of tho owner of the Wood lot; that in the meantime the brokers had- purchased in their own behalf the Androvette - lot mentioned ip the . complaint, taking title in the name of one Chandler; that the plaintiff, was informed of the fact that the Title Guarantee Company would not approve of the title to the Wood lot, and that the brokers then offered to sell- her the Androvette lot in lieu of the Wood lot for $4,950, and it was in the performance of this transaction that the mortgage in suit found its inception. Plaintiff’s- own witness testifies to- these facts, and says that the - transaction occurred after the .plaintiff ;was fully informed of all the facts, and when she had full knowledge that she was purchasing of the brokers, and. not . merely taking title to property bought in her behalf. There was a failure, therefore, to establish the case alleged in the pleadings, and there .was no amendment of the same upon the trial.

' But in addition to this, there was introduced and received in evidence. a certificate of estoppel, in which the plaintiff represented that the mortgage in question was a valid and subsisting obligation; It is true that the plaintiff denied'.the signature to the instrument, but it was made in'the. presence of her own witness, Hodgskin, who witnessed its execution, and it had the certificate of a commissioner of deeds that the signature was so'witnessed, so-that it had all the formalities necessary to make it competent evidence under the-provisions of the Code of Civil Procedure, and we are of the opinion ' ■ that under .the authorities a mere -denial by an interested witness ■ does not necessarily overcome -the presumption of validity. The plaintiff, in the presence of the court, wrote her name for the purpose Of comparison, and the learned court-decided, as we are inclined to believe correctly, that the signature was genuine. ' So that, in addition to the plaintiff failing to establish the cause of action ■ pleaded, there was a complete estoppel to question the validity of the mortgage, the -defendant having taken -the assignment relying upon this certificate.

The motion for a new trial, it seems to us, is without greater claims than the appeal upon the merits. The so-called newly-discovered evidence relating to expert testimony on the question of the genuineness of the plaintiff’s signature was as available before the trial as afterward, and it does not come within the well-established rule in such cases. So far as we are able to discover the defendant is an innocent party, and there is no reason to suppose that the ends of justice will be promoted by a new trial. .

The judgment and order appealed from should be affirmed, with costs.

Jenks, Gaynor, Eich and Miller, JJ., concurred.

Judgment affirmed, with costs. Order affirmed, with ten dollars costs and disbursements.  