
    Gallup v. Henderson et ux.
    
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    1. Attorney and Client—Contracts between.
    Plaintiff, 80 years old, sued to set aside a foreclosure of a mortgage, which she alleged she owned, and in which suit had been brought and judgment had been obtained without her knowledge or consent, subjecting the property to two tax-leases and a tax certificate, in favor of the wife of her attorney. Her attorney, one of the defendants, claimed to be the owner of the mortgage, though it ran-to plaintiff, alleging that She owed him $3,000 on an old agreement that he should have all a certain piece of land brought over $3,000 at a foreclosure of amortgageof $6,000 which plaintiff held thereon,and alleged that the land sold at foreclosure for $6,000. Held that, in view of the inequitable nature of the contract set up by the attorney, and the relations existing between the parties, the judgment in foreclosure would be set aside.
    2. New Trial—Newly-Discovered Evidence.
    A new trial on account of newly-discovered evidence will not be granted where on such trial no different result could be expected.
    Appeal from special term, Kings county.
    
      Emeline Gallup sued James Henderson and wife, alleging that she was nearly 80 years old; that she gave defendant Henderson, who was her attorney, $3,000 to invest in a mortgage; that he did so, and without her knowledge brought a suit to foreclose the same in her name, making his wife a party. The latter answered, alleging that she held two tax-leases against the premises for 1,000 years and a certificate of sale for an unpaid assessment on the premises. A judgment was entered in the foreclosure suit, directing a sale subject to the tax-leases. Defendants had never informed plaintiff of such incumbrances, nor asked her to pay the same. Plaintiff asked that the judgment and deed under it be set aside, and that the leases and certificate be declared of no effect against the lien of plaintiff’s mortgage. Defendant admitted receiving the money, but alleged it was money due him by plaintiff, and that by agreement plaintiff took the mortgage, and the $3,000 was charged back to her. He alleged that his wife bought the tax certificate of one who had purchased it at tax-sale, and had also bought at tax-sale, and acquired the leases thereby. Judgment was rendered for plaintiff, and defendant Mrs. Henderson appeals.
    Argued before Barnard, P. J., and Pratt, J.
    
      S. Jones, for appellant. N. Oothren, for respondent.
   Barnard, P. J.

The general inference from the evidence in this case is very strong against the defendant Henderson. The plaintiff was nearly 80 years of age, and the first transaction between the parties was an agreement upon a foreclosure of a mortgage, whereby the defendant, who was the attorney, was to have all the property brought over $3,000. The attorney claims to be entitled to over $3,000 on this transaction. With the plaintiff’s $3,000 a bond and mortgage, given by Caroline J. Haddon, and owned by one Dennis, was assigned to plaintiff. Henderson claims to own this mortgage, also, and that the reason why the title was taken to plaintiff was that Haddon’s wife was his niece. Subsequently to the taking of the mortgage, and in May, 1884, the defendant’s wife bought a tax-title apparently superior to the mortgage, a lease for 1,000 years. In April, 1885, the foreclosure suit was commenced in plaintiff’s name. The defendant Henderson was the attorney, and his then partner was attorney for his wife, and she set up a superior title. The tax-lease and the property was sold subject to it. Then a deed was given to plaintiff and Mrs. Henderson by the referee, and the condition of sale was subject to the tax-title. The defendant Henderson endeavored to get the referee’s deed made out to the two ladies in joint tenancy. It was also part of the defendants’ case that the defendant Henderson had an agreement with the plaintiff to pay $1,000 a year for legal services to be rendered. The plaintiff denies the agreement on the foreclosure. She denies that the Haddon mort.gage was held by her for Henderson. She denies the $1,000 a year. The trial judge properly found against the defendants. The plaintiff was very ■old. The defendant was her lawyer, and they lived together. The transaction is so inequitable that as between strangers such a finding would be justified. The judgment should therefore be affirmed, with costs.

Pratt, J., concurs.

ON MOTION FOR NEW TRIAL.

Barnard, P. J. The motion for a new trial is based upon a claim that the defendants have discovered evidence since the trial which is material, and upon which a different result will be likely. The evidence consists of two witnesses. One is Andrew J. Cripsey. The action is brought to set aside a reformed deed, and the plaintiff’s case was tried upon the theory that it was her mortgage which was foreclosed, and that she should have had the deed. It was claimed by the defendant that the mortgage was really his, and that the plaintiff only nominally held the title. Cripsey’s affidavit is entirely at war with this claim. He stated that he met the parties on the ferry-boat after the sale, and that the plaintiff said “she was glad that she and Mrs. Henderson had made the purchase, and that she hoped it would turn out to be a good investment.” What had she to do with it if Mr. Henderson testified truly on the trial that she held the title for him? The affidavit of Butcher is equally unsatisfactory. He says he overheard a conversation in an adjoining room, he being an inmate of defendant’s office. That one Brown advised Henderson to accept the plaintiff’s proposition “in case the debts did not warrant the payment of too much money.” He heard plaintiff say in presence of Hash, in discussing the matter with the same memoranda book which was present at the Brown interview, that Mrs. Gallup said she would give the defendant all over the $3,000; that she was satisfied that Henderson should take in case of her death any property she left rather than her husband or relations should get it. Henderson replied that he would give all the money she wanted. This interview was to the effect further that Henderson would guaranty the $3,000. If a new trial should be granted, no different result could be expected with this new evidence, in view of the relationship of the parties, and of the hard and inconceivable motive of the contract itself. There is no question but that the plaintiff tells the exact truth about the dealings of the parties. The claim to her was always apparently honorable, and any deviation in the papers, therefore, were for an ultimate purpose of which she was not designed to be cognizant. Order affirmed, with costs and disbursements.

Pratt, J., concurs.  