In re Bear

S.D. New York

In re Bear

8 F. 428, 1881 U.S. Dist. LEXIS 149

DecidedJuly 14, 1881

StatusPublished

This text of 8 F. 428 (In re Bear) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Bear, 8 F. 428, 1881 U.S. Dist. LEXIS 149 (S.D.N.Y. 1881).

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Opinion

Brown, D. J.

The general rule is not to allow amendments for the purpose of setting up statutes of limitation merely to defeat a claim otherwise equitable and just. Walcott v. McFarlan, 6 Hill, 227; 2 Wend. 294; 7 Cow. 401. While the Eleventh Ward Bank Case was pending and undetermined it was undesirable that other ‘suits of a similar character should be multiplied. Jones properly waited for its determination. After that he acted promptly in pre- . paring and forwarding proof of secured claim to be filed. The mistakes made by his attorneys as to the filing of claims show gross carelessness or inattention on their part; but I think the consequences should not be visited upon Jones, an absent non-resident creditor who held a legal lien on the assets. The affidavit of Brainsby shows that Jones’ attorneys were about to file petition for the enforcement of his . lien on the proceeds within the two years, but were deterred from doing so by the request of the assignee’s attorney on the ground of an ap’.peal taken by the latter. It would be inequitable to allow the assignee to take advantage of the delay thus procured by his attorney’s request, (In re Maybin, 15 B. R. 468,) and I think the usual rule should be applied denying the motion, without costs.

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Brown, D. J.

The general rule is not to allow amendments for the purpose of setting up statutes of limitation merely to defeat a claim otherwise equitable and just. Walcott v. McFarlan, 6 Hill, 227; 2 Wend. 294; 7 Cow. 401. While the Eleventh Ward Bank Case was pending and undetermined it was undesirable that other ‘suits of a similar character should be multiplied. Jones properly waited for its determination. After that he acted promptly in pre- . paring and forwarding proof of secured claim to be filed. The mistakes made by his attorneys as to the filing of claims show gross carelessness or inattention on their part; but I think the consequences should not be visited upon Jones, an absent non-resident creditor who held a legal lien on the assets. The affidavit of Brainsby shows that Jones’ attorneys were about to file petition for the enforcement of his . lien on the proceeds within the two years, but were deterred from doing so by the request of the assignee’s attorney on the ground of an ap’.peal taken by the latter. It would be inequitable to allow the assignee to take advantage of the delay thus procured by his attorney’s request, (In re Maybin, 15 B. R. 468,) and I think the usual rule should be applied denying the motion, without costs.

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8 F. 428, 1881 U.S. Dist. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bear-nysd-1881.

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