Orchard v. Cross , 12 Barb. 294 ( 1851 )

By the Court,

King, J.

Upon the argument, the counsel for the plaintiff abandoned the appeal from the decision of the judge, at special term, refusing to grant a new trial, on the ground of newly discovered evidence. The motion now is, to set aside the referee’s report. So far as this proceeds on the supposition that the referee’s finding is at variance with the facts in the case, it is sufficient to say that the referee’s finding, upon questions of fact, will not be reviewed in this court, at the general term. So far as it is based upon a supposed error of the referee, in determining the legal effect of the facts found by him, I have not been able to perceive the error. The defendants were in possession of the plates, for which the action is brought, upon a pledge thereof, for money advanced, and to be advanced, by them. Under a separate mortgage to secure the same debt, they had a lien on the copyright of the works, the stereotype plates of which, were in their possession. The plaintiff’s claim, under the mortgage assigned to him, and the one made to him by Wellman, arose subsequently to the defendants’ possession, by virtue of the pledge to them. The defendants informed the plaintiff, before he became assignee of the first mortgage under which he claims, or advanced money on the second mortgage, of the amount of their lien on the plates, stating it to be,- the amount mentioned in the mortgage they held on the copyrights of the works printed from said plates. They did not mislead the plaintiff, by stating the nature of their lien; and the mortgage disclosed that the plates were not included in it. The plaintiff understood the amount for which the defendants claimed to hold the plates. That amount has not been paid; he has not been misled by them, to his prejudice; and they having the prior possession, have the better right until their lien is satisfied. This lien was not satisfied when the action was tried; and in my opinion, the referee properly found for the defendant, and his decision should be affirmed.

[New-York General Term, December 1, 1851.

Judgment should be entered for the defendants, with costs.

Edmonds, Mitchell and King, Justices.]