#### BLAZEY v. McLEAN.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

Mortgages—Absolute Deed—Reconveyance.

Where a deed absolute in form is given as collateral security for the price of land, and afterwards, by agreement between the parties, the contract for the sale of land is canceled, and a conveyance made under a different contract, a reconveyance will be decreed.

Appeal from judgment on report of referee.

*287Action by Elizabeth Blazey against Hector McLean to compel a reconveyance of real estate. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

C. C. Davy, for appellant.

E. W. Gardner, for respondent.

DWIGHT, P. J.

The action was to compel a reconveyance to the plaintiff by the defendant of two city lots in the city of Rochester, wrhich had once been conveyed to the defendant by the plaintiff by a deed absolute on its face, but which, by an instrument in writing, contemporaneously executed by the defendant, was declared to be collateral security for the payment of §2,000, part of the purchase price of a farm in Orleans county, which the defendant at the same time contracted to convey to John Blazey, the husband of the plaintiff, and one White. The complaint also asked for an accounting by the defendant for the rents and profits of the lots in question during the time they had been occupied by him. The §2,000 was to be paid prior to the execution of a deed of the farm by the defendant to Blazey and White. The action was first tried at an equity term in Monroe county, wdiere it was found and held that the deed of the plaintiff was given only as collateral security, as above stated; that the contract under which the §2,000 was payable to the defendant had been canceled by agreement of the parties thereto, and that the farm had been subsequently conveyed by the defendant, under a new contract, and for a new consideration, to the wife of White; that the debt for the payment of which the collateral security was given by the plaintiff no longer existed; that such security was thereby discharged, and that the plaintiff was entitled to the relief demanded in her complaint. An interlocutory judgment was rendered accordingly, and a* reference was ordered, to take the account and ascertain the amount of the rents and profits chargeable to the defendant. On the coming in of the referee’s report final judgment was entered, from which an appeal was taken to this court, where the judgment was affirmed, and the findings and conclusions of the special term were fully sustained. See opinion of the court by Macomber, J., 12 N. Y. Supp. 672. On appeal from the judgment of this court to the court of appeals the same view was taken of all the questions arising upon the evidence as was taken at special term. It was held, in an opinion by Finch, J., that upon the case so made the deed was collateral security only; that the debt secured thereby had been discharged by the act and •consent of the defendant, and that a reconveyance was the necessary consequence. But the judgment appealed from was reversed, and a new trial ordered, on the sole ground that evidence offered by the defendant for the purpose of showing that, notwithstanding the instrument in the nature of a defeasance, the plaintiff had delivered her deed to the defendant as an absolute transfer of the lots, and for which he agreed to allow §2,000 as a payment upon her hus*288band’s contract. Blazey v. McLean, 129 N. Y. 44, 29 N. E. 6. On the new trial, which is now under review, the evidence was in all respects the same as on the previous trial,—being read by consent from the stenographer’s minutes,—except that the defendant was permitted to give such evidence as he could in pursuance of his offer made on the former trial. That evidence proved to be utterly inadequate to establish the fact indicated by the offer, and the proposition was negatived by the findings of the referee. In other respects his findings and conclusions were to the same effect as those of the court on the former trial, and the judgment directed by him was the same as the former judgment. There seems to us to be no question left for consideration on this appeal. The case now made is the same as that which resulted in the former judgment; and on that case, as held both by this court and the court of appeals, the plaintiff was entitled to the judgment appealed from. That judgment must therefore be affirmed. ***Judgment appealed from affirmed, with costs. All concur.