Mutual Life Insurance v. Cameron

1 Abb. N. Cas. 424

• Court: New York Supreme Court
• Decided: October 15, 1876
• Status: Published

Opinion

Barrett, J.

The laches is only apparent. The defendant moved as soon as he learned what had taken place in the suit, and when for the first time the question of his liability for a deficiency became a practical one. He ought to be allowed to plead his discharge, upon payment of the costs which have accrued since the decision of the general term, followed by the notice of trial for the second time, and $10 costs of motion. The plaintiff, however, has the usual leave to discontinue or to disclaim any personal claim against Cameron, within twenty days, without costs.

Ordered accordingly.

*

There was no appeal.

The order was as follows :

Ordered: That said motion be and the same is hereby granted; and that said defendant have leave to serve his answer herein within three days after the entry of this action, on payment to plaintiff’s attorney of $25 costs accrued since the decision of the general term herein, ordering a new trial of this action, and $10 costs of this motion.

And it is further ordered that upon the service of said answer, and the payment of such costs, the judgment herein entered on the day of February, 1875, so far as the same provides for the payment, of any deficiency by the said Cameron, .be vacated and set aside.

And it is further ordered that the plaintiff have leave to discontinue this action as against said defendant Cameron, or to disclaim any personal claim against him therein, within twenty days after service of said answer without costs, if so advised.