lowed to do, and the defendant appealed REVIVOR.

from the order. It was claimed by apN. Y. SUPREME COURT, GENERAL TERM, pellant that no action can be revived in FIRST DEPARTMENT.

the name of a person who is the assignee

of an executor, either by motion or supAlanson Robinson, respt., v. George Brisbane et al., applts.

plemental bill.

A. N. Weiler, for applt. Decided Mar. 7, 1876.

Alvin Burt, for respt. A supplemental complaint may be filed to

Held, That the case of Rosell vs. Adri. carry into effect n julgment of foreclosure upon application of the assignee of ance, 22 How, 97, relied upon by appelthe representative of a deceased" plain- lant, decided at Special Term, was based

upon the supposition that the former A lapse of over four years from the date practice did not provide for the contin

of the recovery of juilgment, and nearly gency here presented, and that the code three years from the date of the assign- had gone no further than the former pracmeni, does not per se work a forfeiture tice in this respect. The learned justice of the right to be allowed to file supplemental bill, but is only a circumstance seems to have been in error in both rebearing on the good faith of the applica- spects. The former practice did allow tion.

bills to be filed after a decree had been reSection 121 of the code includes not only corded, but not executed, to carry it into

legal representatives but successors in effect after the decease of the complaininterest.

ant and the acquisition of his interest by Appeal from order allowing a supple- another person. mental complaint to be filed to carry into Held, further, That 121 of the code effect a judgment of foreclosure. This provides that “in case of death, marriage, action was prosecuted by the plaintiff for or other disability of a party, the Court, the foreclosure of a mortgage given by the on motion, at any time within one year defendant Brisbane and his wife. Such thereafter or afterward, on a supplementproceedings were had in the action that al complaint, may allow the action to be on the 2nd day of February, 1870, a judg- continued by or against his representament of foreclosure was recovered and a tives, or successor in interest.referee was appointed to make a sale un. signment from the executor to the applider it and convey the mortgaged premises caut made her a successor in interest, and to the purchaser. Before that was done, entitled her to the order made by the and on or about the 20th of May, 1870, Court below. the plaintiff died, leaving a will, which The delay in making the motion did was afterwards proved, and by which he not, as a matter of course, entitle the deappointed two persons as his executors, fendant to its denial. That was merely a one of whom qualified and became sole circumstance bearing on the good faith of executor. The defendant Brisbane made the application. Her laches were not so three payments to the executor on the long continued as necessarily to produce judgment October, 1870, and May, 1871. a forfeiture of her rights. On the 30th of March, 1872, the execu

Order affirmed, with $10 costs and distor assigned and transferred the bond, bursement of appeal. mortgage and judgment to Mary Robinson,

Opinion by Daniels, J.; Davis, P. J., who in February, 1875, applied for leave and Brady, J., concurring. to file a supplemental complaint to carry judgment into effect. That she was al

The as


In November, 1874, the plaintiffs moved N. Y. SUPREME COURT, GEN. TERM, the court, upon affidavits stating in subFIRST DEPT.

stance that judgment had been enterDaniel W. Whitney and ano., applts, ed upon the appeal to the General Term, v. Randolph W. Townsend, respt.

for an order directing them to enter judgDecided March 6, 1876.

ment, which motion was denied on the It is well settled that the ecurt cannot set ground that judgment had been entered.

aside a judgment to enable a party to Afterwards plaintiffs served notice of apappeal when the time to appeal has ex- peal from the judgment, which was repired. There is no power in the court turned as too late. directly or indirectly to extend the time to appeal.

The irregularities alleged were in subThe court is justified in regarding techni- stance that the judgment was not enter

cal irregularities in the entry of judg- ed in the proper judgment book, and that ment, waived by lapse of time, when it was entered without costs; that the there is nothing in the papers to show judgment roll was not filed with the that the advantages gained by the respondent by reason of gross laches of the equity clerk in the clerk's office, but left appellants is inconsistent with equity by the defendant with the common law and justice.

clerk, and placed with common law papers Appeal from order of the Special Term in the clerk's office, whereby no judgment denying motion to set aside judgment for was or could be docketed. irregularity.

H. L. Clinton and H. E. Davenport, for The papers show that this case was applts. tried at Special Term in April, 1867, and A. J. Vanderpoel and A. K. Dyer, for that judgment was directed for the de- respt. fendant dismissing the complaint with costs. The judgment roll, in conformity

Held, It is well settled that the Court with such judgment, was filed on the 24th cannot set aside a judgment to enable a October, 1867, and judgment docketed for party to appeal when the time to appeal $201, costs and disbursements. From that has expired. There is no power in the judgment the present appellants appealed court to extend the time to appeal. It to the General Term, where the judgment cannot do indirectly that which it cannot of the Special Term was affirmed on the do directly. Under section 331 no notice 30th of December, 1869, as appears by an of entry of judgment is necessary to limit order duly entered by the clerk on that the time to appeal. In this respect an day. By the order of the General Term appeal to the Court of Appeals from a the judgment was affirmed with costs to judgment, differs from an appeal to the the respondent, to be adjusted by the Court of Appeals from an order, and also clerk of the court. On the 9th of No from an appeal to the General Term from vember, 1872, a judgment roll of the an order or judgment made or entered at judgment of affirmance was filed in the the Special Term. In the last two cases office of the clerk, but no costs of appeal notice of the entry of the order or were taxed and no judgment for costs judgment must be given to limit time to was entered or docketed. The judgment appeal (Code, secs. 331 and 332). The roll was regular in form, and the respond plaintiff knew, or could have ascertained ent states in his affidavit that he directed without difficulty, that the General Term the managing attorney of his law firm to had affirmed the judgment of the Special waive costs and enter up and perfect Term. If, after searching in the County judgment without costs. No judgment Clerk's office, they were unable to find for costs, on that account, was docketed. that any judgment of affirmance had been

entered, it was within their power long for twice the amount of all the interest since to have made the motion which they paid. did not make until November, 1874, to Wm. E. Lansing, for applt. compel the defendant to enter judgment, D. D. Walrath, for respt. 80 that they could appeal. They saw fit

Held, That the language of said secnot to do so, and left the defendant in tion is satisfied by restricting the recovery possession of the property involved in this to twice the sum of the interest paid in suit. This seems to us to have been gross excess of the legal rate ; that the first laches on their part. There is no reason clause of the section forfeiting the entire to presume that the judgment of the interest only applies in case of actions Special Term and the affirmance by the brought to enforce the usurious contract. General Term are not strictly legal and 72 Penn. St., 209. just, and there is nothing in the papers to National Bank of Whitehall v. Lamb, show that the advantage gained by the 50 N. Y., 95, and Farmers' Bank of respondent by reason of the gross laches Fayetteville v. Hale, 59 id., 53, held to be of the appellant, is inconsistent with overruled by the decision of the U. S. equity and justice.

Supreme Court in F. & M. Nat. Bank v. Under such circumstances, even if there Deering. appeared to be technical irregularities, the

Also held, That as the act of 1864 uncourt would be justified in regarding them der which this action was brought reguas waived by lapse of time.

lated the recovery by the amount illegally The order should be affirmed, with costs. received and taken, and did not give a

Opinion by Davis, P. J.; Brady and fixed sum as an arbitrary penalty, the Daniels, J. J., concurring.

party entitled to maintain the action could recover the amount paid for usury

within two years prior to the commenceNATIONAL BANKS. EXCESS OF|ment of the action whether the amount INTEREST. PENALTY. has been paid in one or several payments.

Sturgiss v. Shofford, 45 N. Y., 446, and N. Y. COURT OF APPEALS.

Fisher v. N. Y. C. & H. R. R. R. Co., 46 Hintermister, applt. v. First National id., 644, distinguished. Bank of Chittenango, respt.

Order of General Term reversing judg

ment for plaintiff and granting new trial Decided February 15, 1876.

modified, and judgment of Special Term Under sec. 5198 of the U. S. R. S. relat-reversed, and new trial granted unless

ing to penalties against National Banks plaintiff stipulate to reduce judgment to for receiving a greater rate of interest than is allowed by law, no recovery can twice the amount of the illegal interest, in be had beyond twice the sum of the in- which case judgment affirmed. terest paid in excess of the legal rate. Opinion by Allen, J.

This action was brought against defendant, a bank organized under the na

CHANGE OF VENUE. tional bank act of May 3, 1864 (13 U. S. Stat. at Large, 99, 110), to recover the N. Y. SUPREME COURT-GENERAL Term.

FIRST DEPARTMENT. penalty given by sec 30 (U. S. R. S., sec. 5198] of said act, for recovering a greater

Kelly, respt. v. Maltham, et al, applts. rate of interest than is allowed by law, to Decided December 1875. wit: “Twice the amount of the interest Affidavit and notice to change venue for thus paid.” Plaintiff recovered a judgment convenience of witnesses should set out

the groueds for bilief that witnesses are witnesses, for both parties, are residents material.

there, and since the motion was probaAppeal from order denying motion to bly denied because of defects in the atlidachange place of trial.

vit, we think that the order should be so This action was brought to recover for modified as to allow defendants to renew damage alleged to have been done to plain- the motion on other papers on the payment tiff's canalboat while lying in the canal of costs granted below. basin of Buffalo harbor, by defendant's

Order so modified. tug colliding with the same through negli. Opinion by Davis, P. J.; Brady, J. and gence and mismanagement. The venue Daniels, J., concurring. was laid in New York county. This, defendant seeks to change, 1st. Because it is not the proper county, in that the alleged

PARTNERSHIP. injury occured, if at all, in Erie county;

N. Y. COURT OF APPEALS. that all of defendants reside in Erie coun

Arnold et al, ex'rs., &c., applts., v Nichty, and that plaintiff lives upon his canal

ols impleaded, &c., respt. boat, having no other residence. 20. For convenience of witnesses, giving

Decided February 1, 1876. a long list of witnesses, and what he in- Where, upon the formation of a cotends to prove by them, but states no partnership, it is agreed that the new

concern shall take the assets of one grounds for his expectation that they will

of the partners and pay a'l his speciso testify, nor any allegation that they said

fied debts, such promise inures to they would so testisy.

the benefit of the creditors of him Plaintiff swore to a residence in New

whose assets were so taken. York City, and gave the names of many And so long as the incoming partner material witnesses residing in New York retains the assets, he cannot defend County, what they will testify to, and the upon the ground he was fraudulentreason why he expects that they will so

ly induced to make the agreement. testify. The court denied the motion. This action was brought to recover the

sum of $2,000 loaned by plaintiff's testaMcKay & Kelly for respt.

tor to B., who had been engaged in busiThadeus C. Davis for applts.

ness as importer on August 15, 1867. B. On appeal.

continued in business alone until January, Held, That the court below seemed sa- 1868, when he formed a copartnership isfied, by plaintiffos affidavit, that he was with defendant, N., and under the firm a resident of New York City at the time name of B. & Co., carried on the busiof the commencement of this action. This ness until May 1, 1869. The evidence disposes of the first ground.

tended to show that when the copartnerThe affidavit as to the convenience of ship was formed B. transferred his busiwitnesses was defective, not conforming ness assets to the firm of B & Co., and in to the rules and practice of the court. It consideration thereof, the firm assumed and does not appear whether the motion was agreed to pay certain specified debts of B., denied by the court below because of this among which was that to plaintiff's testadefect, but the imposition of costs which tor. The assets were more than sufficient is unusual when such motions are denied to pay the debts assumed. They were on the merits, renders this probable.

first to le used to pay debts, and the balIt is evident that the cause of action auce B. was to be credited with. arose altogether in the city of Buffalo, and Benj. K. Phelps, for applt. it is highly probable that the principal

w. Howard Wait, for respt.

Held, That as B. transferred to B. & Alexander, respt., v. Germania Ins. Co the assets to wnich his creditors had a Co., applt. right to look for the payment of their

Decided February 22, 1876. claims, it must be deemed that the promise where a party accepts a policy conof B. & Co to pay such claims was made

taining the wordsOccupied as a for the benefit of the creditors, and plain

dwelling,it amounts to a warranty tiff's testator was entitled to adopt the that the premises are occupied, und promise as especially for his benefit. 20

if the policy provided if the preN. Y., 268; 24 id. 178; 48 id.; 253 ; 54 id. mises became vacant and unoccu581; Norrell v. Irur, 55 N. Y., 270, dis pied the policy should be void,and tinguished.

they were actually unoccupied when

the insurance was effecteil, it avoids The defendant N. alleged in his answer

the policy, and knowledge upon the that he was induced to enter into the

part of the Company's agent that agreement by the fraud of B., but he did

the premises were vacant, docs not not allege that he had rescinded the agree affect its validity. ment on that account, or that he had ever An agreement in a policy that any suffered any damages on account of it. person other than the assured, who He offered to prove, upon the trial, this procures the insurance should be allegation and the court excluded the evi

deemed the agent of the assured is

operative. dence. Held, no error. That N. could not re

This action was brought upon a policy tain the fruits of the agreement and refuse of insurance upon an unoccupied dwellon account of fraud to bear its burdens : ing belonging to plaintiff, which was unthat fraud could in no aspect of the case occupied when the insurance was applied farnish a total or partial defence to the ac- for, defendant's agent knew that the tion as the firm had more than sufficient building was not occupied. The policy assets transferred to it by B. to pay all stated that the insurance was upon plaindebts assumed.

tiff's "two-story and extension frame The judge charged the jury that if they shingle roof building occupied as a dwellfound that there was an agreement being.” It also provided, that in case the tween B. and N, in entering into the co- premises became vacant and unoccupied, partnership, that B & Co. should take the the policy should become void. business assets of B., and in consideration

Held, That the statement in the po'icy thereof pay the specified liabilities of B., that the building was occupied as a dwellthe plaintiffs were entitled to recover, and ing was a warranty, and the breach therethat if they found there was not such an of avoided the policy. 7 N. Y., 370 ; 13 agreement, they are not entitled to recover. Conn., 544; 54 N. Y., 193. Held, no error. That this charge fairly

Also held, That knowledge by defend. covered the case.

ant's agent, that the building was unocOrder of General Term reversed and cupied at the time the insurance was judgment entered on verdict affirmed, effected, could not affect the validity of with costs.

the warranty. 20 N. Y., 52: Rowley v.

Empire Ins. Co.; 20 N. Y. 550, distinOpinion by Earl, J.


The policy contained an agreement FIRE INSURANCE.

that any person other than the assured, WARRANTY. AGENT.

who might have procured the insurance

to be taken by the company should be N. Y. COURT OT APPEALS. deemed to be the agent of the assured

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