Dodd v. Astor

2 Barb. Ch. 395

Opinion

The Chancellor.

The application of the appellants, was? properly denied, upon the ground- that it. was in. substance a renewal of a former application, without leave, of the court; after such former application had been denied, upon, the merits,, without reserving the right to renew the motion to amend upon a new state-of facts.

(a) Indeed the former application, was denied upon the same facts, substantially. For although the solicitor of the complainants had discovered that there were-, some technical defects-in the papers upon which the first application was- founded, the affidavit of the defendant’s solicitor showed that no.objection, upon that ground, was.-made either bafore the- vice chancellor or on the hearing before the chancellor, upon the. appeal; It would therefore have been erroneous, for the. vice chancellor to grant the second; motion, after his former, order, denying the application upon the. merits had been a$. firmed by the appellate court.

Again; there is nothing in the case rendering it proper that the extraordinary relief asked for should be granted in this ¿stage of the suit. And from an examination Of the pleadings and proofs, I am satisfied that the complainants ought not to succeed, even if the bill is ¿amended, in the manner asked for in the petition, by striking out the whole statement of the contract as sworn to in the bill and substituting the contract stated in the answer. The last mentioned contract the complainant refused tb perform, although the defendant offered him a lease upon the terms in that contract mentioned. And having assigned his interest in the premises, for the benefit of his. creditors, in connection with his other property, more than twenty years before the filing of his bill, and allowed the defendant to use the premises as his own, and in ■hostility to the claim of the assignees, for fourteen or fifteen years, the right to file a bill for a specific performance was barred, both as against him and against his assignees, to whom the assignment was made in 1821.

The revised statutes have limited the right to "file "a bill in ■equity, when the jurisdiction of the court is not concurrent with ¿that of courts of law, in relation to the -relief sought, to ten years after the right to file a bill accrued. Here the testimony conclusively shows that more than ten years before the filing of the bill, the defendant Astor was not only in the undisturbed possession of the premises, claiming them as his own, but that he had for considerably more than ten years refused to -recognize any right or interest of the complainant or his assigns -in the premises, either at law or in equity, or to any part of the rents or ¡profits thereof. The claim-was therefore barred by the statute of limitations before the re-assignment of the premises to Dodd. And that re-assignment was álso void; because it was an attempt to transfer a claim to real estate, i-held adversély to such claim, and for the purposeof litigation ■ merely. No 'interest whatever passed to the original complainant in this suit "by vntue of the re-assignment; and 'he Could --not-sustain "a¿bill for relief founded thereon. -It was upon these grounds, as well as upon the principle that it was improper to allow the complainant to amend his bill, so as to make substantially a new case, after the parties had taken their proofs in the cause, that I affirmed the order of the vice chancellor denying the first application.

The order appealed from in the present case, must therefore be affirmed with costs.

See. Willet v. Fayerweather, (1 Barb. Sup. Court Rep. 72, 73.)