REVIVOR.

FIRST DEPARTMENT.

lowed to do, and the defendant appealed from the order. It was claimed by ap

N. Y. SUPREME COURT, GENERAL TERM, pellant that no action can be revived in the name of a person who is the assignee of an executor, either by motion or supplemental bill.

Alanson Robinson, respt., v. George Brisbane et al., applts.

Decided Mar. 7, 1876.

A supplemental complaint may be filed to carry into effect a judgment of foreclosure upon application of the assignee of the representative of a deceased plaintiff.

A. N. Weder, for applt.
Alvin Burt, for respt.

Held, That the case of Rosell vs. Adriance, 22 How, 97, relied upon by appellant, 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 continof the recovery of judgment, and nearly gency here presented, and that the code three years from the date of the assign- had gone no further than the former pracment, 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 recorded, but not executed, to carry it into effect after the decease of the complainant and the acquisition of his interest by another person.

Section 121 of the code includes not only legal representatives but successors in interest.

Held, further, That 121 of the code provides that "in case of death, marriage, or other disability of a party, the Court, on motion, at any time within one year

Appeal from order allowing a supplemental complaint to be filed to carry into effect a judgment of foreclosure. This action was prosecuted by the plaintiff for the foreclosure of a mortgage given by the defendant Brisbane and his wife. Such thereafter or afterward, on a supplementproceedings were had in the action that on the 2nd day of February, 1870, a judgment of foreclosure was recovered and a referee was appointed to make a sale under it and convey the mortgaged premises to the purchaser. Before that was done, and on or about the 20th of May, 1870, the plaintiff died, leaving a will, which was afterwards proved, and by which he appointed two persons as his executors, one of whom qualified and became sole executor. The defendant Brisbane made three payments to the executor on the judgment October, 1870, and May, 1871. On the 30th of March, 1872, the executor assigned and transferred the bond, mortgage and judgment to Mary Robinson, who in February, 1875, applied for leave to file a supplemental complaint to carry judgment into effect. That she was al

al complaint, may allow the action to be continued by or against his representatives, or successor in interest." The assignment from the executor to the applicant made her a successor in interest, and entitled her to the order made by the Court below.

The delay in making the motion did. not, as a matter of course, entitle the defendant to its denial. That was merely a circumstance bearing on the good faith of the application. Her laches were not so long continued as necessarily to produce a forfeiture of her rights.

Order affirmed, with $10 costs and disbursement of appeal.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurring.

PRACTICE.

N. Y. SUPREME COURT, GEN. TERM,
FIRST DEPT.

Daniel W. Whitney and ano., applts, v. Randolph W. Townsend, respt.

Decided March 6, 1876.

It is well settled that the court cannot set aside a judgment to enable a party to appeal when the time to appeal has expired. There is no power in the court directly or indirectly to extend the time to appeal.

In November, 1874, the plaintiffs moved the court, upon affidavits stating in substance that no judgment had been entered upon the appeal to the General Term, for an order directing them to enter judg ment, which motion was denied on the ground that judgment had been entered. Afterwards plaintiffs served notice of appeal from the judgment, which was returned as too late.

The irregularities alleged were in subThe court is justified in regarding techni- stance that the judgment was not entercal 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 in the clerk's office, whereby no judgment was or could be docketed.

Appeal from order of the Special Term denying motion to set aside judgment for irregularity.

H. L. Clinton and H. E. Davenport, for

applts.

A. J. Vanderpoel and A. K. Dyer, for respt.

The papers show that this case was tried at Special Term in April, 1867, and that judgment was directed for the defendant dismissing the complaint with Held, It is well settled that the Court costs. The judgment roll, in conformity 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 au 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

paid.

Wm. E. Lansing, for applt.
D. D. Walrath, for respt.

entered, it was within their power long for twice the amount of all the interest since to have made the motion which they did not make until November, 1874, to compel the defendant to enter judgment so 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. Deering.

Under such circumstances, even if there appeared to be technical irregularities, the court would be justified in regarding them as waived by lapse of time.

The order should be affirmed, with costs. Opinion by Davis, P. J.; Brady and Daniels, J. J., concurring.

Also held, That as the act of 1864 under which this action was brought regulated the recovery by the amount illegally received and taken, and did not give a fixed sum as an arbitrary penalty, the party entitled to maintain the action. could recover the amount paid for usury within two years prior to the commence

NATIONAL BANKS. EXCESS OF ment of the action whether the amount

INTEREST. PENALTY.

N. Y. COURT OF APPEALS.

has been paid in one or several payments. Sturgiss v. Shofford, 45 N. Y., 446, and Fisher v. N. Y. C. & H. R. R. R. Co., 46

Hintermister, applt. v. First National id., 644, distinguished.

Bank of Chittenango, respt.

Decided February 15, 1876.

Under sec. 5198 of the U. S. R. S. relating to penalties against National Banks for receiving a greater rate of interest than is allowed by law, no recovery can be had beyond twice the sum of the interest paid in excess of the legal rate. This action was brought against defendant, a bank organized under the national bank act of May 3, 1864 (13 U. S.

Order of General Term reversing judgment for plaintiff and granting new trial modified, and judgment of Special Term reversed, and new trial granted unless plaintiff stipulate to reduce judgment to twice the amount of the illegal interest, in which case judgment affirmed. Opinion by Allen, J.

CHANGE OF VENUE.

Stat. at Large, 99, 110), to recover the N. Y. Supreme Court-GENERAL TERM.

penalty given by sec 30 (U. S. R. S., sec. 5198] of said act, for recovering a greater rate of interest than is allowed by law, to wit: "Twice the amount of the interest thus paid." Plaintiff recovered a judgment

FIRST DEPARTMENT.

Kelly, respt. v. Maltham, et al, applts.
Decided December 1875.

Affidavit and notice to change venue for

convenience of witnesses should set out

Appeal from order denying motion to change place of trial.

This action was brought to recover for damage alleged to have been done to plaintiff's canalboat while lying in the canal basin of Buffalo harbor, by defendant's tug colliding with the same through negligence and mismanagement. The venue was laid in New York county. This, defendant seeks to change, 1st. Because it is not the proper county, in that the alleged injury occured, if at all, in Erie county; that all of defendants reside in Erie county, and that plaintiff lives upon his canal boat, having no other residence.

2d. For convenience of witnesses, giving a long list of witnesses, and what he intends to prove by them, but states no grounds for his expectation that they will so testify, nor any allegation that they said they would so testify.

Plaintiff swore to a residence in New York City, and gave the names of many material witnesses residing in New York County, what they will testify to, and the reason why he expects that they will so testify. The court denied the motion.

McKay & Kelly for respt.
Thadeus C. Davis for applts.
On appeal.

Held, That the court below seemed satisfied, by plaintiff's affidavit, that he was a resident of New York City at the time of the commencement of this action. This disposes of the first ground.

witnesses, for both parties, are residents there, and since the motion was probably denied because of defects in the affidavit, we think that the order should be so modified as to allow defendants to renew the motion on other papers on the payment of costs granted below.

Order so modified.

Opinion by Davis, P. J.; Brady, J. and Daniels, J., concurring.

PARTNERSHIP.

N. Y. COURT OF APPEALS. Arnold et al, ex'rs., &c., applts., v Nichols, impleaded, &c., respt.

Decided February 1, 1876.

Where, upon the formation of a copartnership, it is agreed that the new concern shall take the assets of one of the partners and pay a'l his specified debts, such promise inures to the benefit of the creditors of him whose assets were so taken.

And so long as the incoming partner retains the assets, he cannot 'defend upon the ground he was fraudulently induced to make the agreement.

This action was brought to recover the sum of $2,000 loaned by plaintiff's testator to B., who had been engaged in business as importer on August 15, 1867. B. continued in business alone until January, 1868, when he formed a copartnership with defendant, N., and under the firm name of B. & Co., carried on the business until May 1, 1869. The evidence 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 on the merits, renders this probable.

It is evident that the cause of action arose altogether in the city of Buffalo, and it is highly probable that the principal

to pay the debts assumed. They were
first to be used to pay debts, and the bal-
ance B. was to be credited with.

Benj. K. Phelps, for applt.
W. Howard Wait, for respt.

Held, That as B. transferred to B. & Co. the assets to which his creditors had a right to look for the payment of their claims, it must be deemed that the promise of B. & Co to pay such claims was made for the benefit of the creditors, and plaintiff's testator was entitled to adopt the promise as especially for his benefit. 20 N. Y., 268; 24 id. 178; 48 id.; 253; 54 id. 581; Norrell v. Irur, 55 N. Y., 270, distinguished.

The defendant N. alleged in his answer that he was induced to enter into the agreement by the fraud of B., but he did not allege that he had rescinded the agreement on that account, or that he had ever suffered any damages on account of it. He offered to prove, upon the trial, this allegation and the court excluded the evidence.

Held, no error. That N. could not retain the fruits of the agreement and refuse on account of fraud to bear its burdens; that fraud could in no aspect of the case furnish a total or partial defence to the action as the firm had more than sufficient assets transferred to it by B. to pay all

debts assumed.

Alexander, respt., v. Germania Ins. Co., applt.

Decided February 22, 1876. Where a party accepts a policy containing the words " Occupied as a dwelling," it amounts to a warranty that the premises are occupied, and if the policy provided "if the premises became vacant and unoccupied the policy should be void," and they were actually unoccupied when the insurance was effected, it avoids the policy, and knowledge upon the part of the Company's agent that the premises were vacant, does not affect its validity.

An agreement in a policy that any person other than the assured, who procures the insurance should be deemed the agent of the assured is operative.

This action was brought upon a policy of insurance upon an unoccupied dwelling belonging to plaintiff, which was unoccupied when the insurance was applied for, defendant's agent knew that the building was not occupied. The policy stated that the insurance was upon plaintiff'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 be- ing." 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 thereof pay the specified liabilities of B., the plaintiffs were entitled to recover, and that if they found there was not such an agreement, they are not entitled to recover. Held, no error. That this charge fairly covered the case.

Order of General Term reversed and judgment entered on verdict affirmed,

Held, That the statement in the po'icy that the building was occupied as a dwelling was a warranty, and the breach thereof avoided the policy. 7 N. Y., 370; 13 Conn., 544; 54 N. Y., 193.

was

Also held, That knowledge by defendant's agent, that the building was unoccupied at the time the insurance effected, could not affect the validity of the warranty. 20 N. Y., 52: Rowley v. Empire Ins. Co.; 20 N. Y. 550, distinguished.

The policy contained an agreement that any person other than the assured, who might have procured the insurance to be taken by the company should be deemed to be the agent of the assured