Jenkins v. Hinman

5 Paige Ch. 309, 1835 N.Y. LEXIS 227, 1835 N.Y. Misc. LEXIS 65

• Court: New York Court of Chancery
• Decided: July 7, 1835
• Status: Published

Opinion

The Chancellor,

The fact that the present vice chancellor of the fifth circuit was, before his appointment to that office, the solicitor and counsel for the complainant, renders him legally incompetent to act as a judge in this matter, except by the consent of both parties. That circumstance alone would be sufficient to authorize the chancellor to hear and decide tiiis application, under the provisions of the act relative to vacancies and disabilities in the office of vice chancellor. (Laws of 1834, p. 1, § 4.) Independent of this statutory provision, however, the chancellor is authorized to hear this application. By these appeals, the whole eause appears to be brought before him; and after the decision upon the appeals, if the chancellor does" not make a final decree in favor of either party, the whole cause will still remain before him for a decision upon the equity reserved, unless he shall think proper to remit the cause to the vice chancellor. (See 2 R. S. 178, § 63.) The case is otherwise, where the appeal is from a decision of a vice chancellor upon some collateral matter not embracing the whole suit.

Upon the merits of this application, however, the defendant must fail. The affidavits on the part of the complainant show that the farm is an ample security for the amount admitted to be due, if the defendant has only a mortgage interest therein. And the insolvency of the complainant being denied, on oath, there is no good reason for the appointment of a receiver to divest him of his possession, pending the litigation. The defendant claims the absolute title to the land, and repudiates the idea that any thing is due to him as the assignee of a mere mortgage security. He has, therefore, no right to ask for an order to pay the mortgage money into court.

The application to appoint a receiver is denied, with costs.