Earle v. Hammond. Rowland M. Hall (John M. Martin, attorney), for plaintiff. Chauncey B. Ripley, for defendant, William A. Hammond. VAN BRUNT, J.-[Indorsed the following memorandum on the papers.]-The cases of Real Estate Trust Co. v. Keatch (7 Hun, 254), and Church v. Maloy (9 Id. 148), expressly decide that the defendant is entitled to the relief which he claims by his answer in this action. Judgment accordingly. Subsequently the following opinion was written. VAN BRUNT, J.-Since making the memorandum upon the papers disposing of this case, I have received plaintiff, and that the said plaintiff made this corrupt and unlawful requirement of defendant on said July 23, 1875, and that defendant consented to pay plaintiff such an unlawful and usurious interest under pressure of plaintiff's requirement and defendant's need of securing the use of said principal sum, at the time said plaintiff agreed to take said bond and mortgage from said Burchill hereinbefore referred to. IV. Third, for a third defense: Defendant denies each and every allegation in said complaint contained, except as herein admitted or controverted. V. Defendant admits that some of the defendants whose names follow that of Helen N. Hammond in the title of this cause claim to have an interest in the said premises. VI. Defendant admits that the defendant Helen N. Hammond has an interest in said premises. VII. Defendant specifically denies that the amount claimed by plaintiff is due him on account of said bond and mortgage, and the transaction set forth in the complaint and this answer, and this defendant hereby offers to pay the amount equitably due with legal interest. Wherefore this defendant asks that the complaint be dismissed with costs, or that this defendant have such other or further relief as to the court may seem just, and as the nature of the case may require. Earle v. Hammond. some points upon the part of the plaintiff, in which it is claimed that the defense raised by the defendants cannot be sustained because of the certificate given by him at the time of the assignment of the mortgage to the plaintiff, and also because the plaintiff had no knowledge that the money that he received came from the defendant. The first ground of objection to the defense might well be urged, if the defendant was claiming a defense against the bond and mortgage as it existed in Mr. Burchell's hands, but he admits the certificate to have then been entirely true, and barely claims that because of payments subsequent to the assignment made to the plaintiff, this credit must be allowed. It is not any defense which he had against the bond and mortgage while in Burchill's hands that the defendant seeks to avail himself of now, but one which has arisen since the plaintiff became the owner, or which arose at the time he became the owner, and therefore such defense is not at all in conflict with the certificate. The next ground of objection is, that the plaintiff supposed that it was Burchill's money he was receiving, and not the defendants, as a consideration for the extension of the time of payment of the mortgage. The plaintiff certainly had the appearance of being an intelligent man; a man of at least ordinary mental capacity. And how any person of ordinary intelligence could suppose that a mortgagee or an assignee of a mortgage could have sufficient interest in the getting an extension of the time of payment of a mortgage to pay over a thousand dollars for it, to the person to whom he was assigning it, I cannot comprehend. If there had been no question of an extension, if the $1,000 had not been paid for the consideration of such extension; but the plaintiff had bought the mortgage at a discount of $1,020 from Burchill, the holder, an entirely Dieckerhoff v. Ahlborn. different case would have been prescribed. But the evidence in this case shows that the plaintiff paid Burchill the full amount of the mortgage, and then received the $1,020 for the extension. The plaintiff must have known, and did know, that this money was paid by the mortgagor to procure this extension, as he was the only person who could possibly be interested in the procurement of such extension. I do not think the objections are well taken, and judgment must be rendered as stated in my original memorandum. DIECKERHOFF v. AHLBORN. N. Y. Supreme Court, First Department; Special N. Y. Supreme Court; Special Term and Chambers, United States District Court (In Bankruptcy) for the Southern District of New York; February, 1877. ARREST. UNDERTAKING.--NON - IMPRISONMENT ACT.--GENERAL ASSIGNMENT.-BANKRUPTCY. An order of arrest will not be set aside for failure to file the undertaking, nor because it was a second order in the same cause, unless the moving papers specify these as irregularities. The provisions of the non-imprisonment act (2 R. S. 29, § 4 [3 R. S. 6 ed. 24]), requiring notice to be published once in each week, for ten weeks successively, must be complied with. The officer has no jurisdiction if in any of the ten weeks there was no publication. An order for an assignment made upon such publication only of the notice, is a nullity. The case of People ex rel. Demarest v. Gray, 10 Abb. Pr. 468, Dieckerhoff v. Ahlborn. followed, and distinguished from Stanton v. Ellis, 12 N. Y. 575, and Soule v. Chase, 1 Robertson, 122. On a petition for discharge, under the fourteen day act (2 R. S. 31 [3 R. S. 6 ed. 25]),-Held, that the debtor's omission from his schedule of property was not excused by alleging forgetfulness, or that he did not read the printed part in the petition. An adjudication and assignment in bankruptcy annulled on the petition of a bankrupt and the consent of all his creditors, to enable him to convey all his property to the creditors. Elliott F. Shepard, for plaintiffs. Cook & Shuck, Horatio F. Averill, Ambrose H. Purdy, and Vedder Van Dyck, for defendant. Emil Dieckerhoff, Louis Raffloer and William Zimmerman sued Otto Ahlborn in the supreme court to recover $26,700, the value of fancy dress goods sold and delivered by the plaintiffs to the defendant. Collections had been made to the amount of over $15,000, and an order of arrest obtained on the ground of fraud in defendant's representations of his pecuniary responsibility at the time of making the contract, and he was held to bail in the sum of $11,000. A motion to vacate the order of arrest was denied by DONOHUE, J., but with leave to renew the application. A second motion on new affidavits for the same relief was denied by the same justice. The prisoner then applied to the superior court of the city of New York for a discharge under R. S. part II, title 1, ch. 5, art. 5, known as the non-imprisonment act. Personal notice of this application was never given to the creditors, although publication was made. A discharge was granted by SPEIR, J. As soon as the creditors became aware of what had been done they obtained in the supreme court, upon the original affidavits, an "alias" order of arrest, and at the same time, Dieckerhoff v. Ahlborn. procured from SPEIR, J., an order to show cause why the discharge granted by him should not be vacated, the prisoner meanwhile being temporarily remanded to jail. The defendant sued out a writ of habeas corpus in the supreme court, and also obtained an order requir ing plaintiffs to show cause why the "alias" order of arrest should not be vacated for irregularity. Argument having been heard, the following decision was rendered by BARRETT, J.-The prisoner cannot be discharged on habeas corpus from his imprisonment under the alias order of arrest issued by Justice DONOHUE. The motion to vacate the order must also be denied because the alleged irregularity is not specified in the order to show cause, nor proved by affidavit, and, if it were, the court could permit the undertaking to be filed nunc pro tunc. It does not even clearly appear by the moving affidavits that this order of arrest was a second order in the same case. True, the defendant says no other suit has been commenced, but non constat but that there was neglect to serve the process. If that were the case, the order to show cause should have specified the irregularity. It is unnecessary, therefore, to pass upon the effect of a second order of arrest in the same case. Motion denied with $10 costs, and defendant remanded under the order of this court. The motion to vacate the discharge in the superior court having been heard, the following decision was rendered by SPEIR, J.-Upon a careful examination of the decisions I am of the opinion that the provisions of the statute requiring notice to be published "once in each week for ten weeks successively" must be strictly com |