Irving v. De Kay
New York Court of Chancery
This was an appeal from an order of the vice chancellor of the first circuit, staying all proceedings in this suit until the complainants therein should have put in and perfected their answer to the cross bill filed by the defendants De Kay and wife.
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This was an appeal from an order of the vice chancellor of the first circuit, staying all proceedings in this suit until the complainants therein should have put in and perfected their answer to the cross bill filed by the defendants De Kay and wife. One object of the present suit was to foreclose or obtain satisfaction of a mortgage upon a part of the real estate belonging to George C. De Kay and wife, in right of the wife, in the city of New-York, given to the complainants by De Kay and the special guardian of his wife, who was a minor at the time of the giving of such mortgage, to secure…
1Opinion of the Court
The Chancellor.
If the cross bill in this case showed a case of equitable set-off, which it was impossible for the defendants to avail themselves of by a proper answer in the original suit, they were not entitled to an order to stay the proceedings without showing some excuse for their neglect to file their cross bill before this suit was at issue. Here the defendants were served with the bill in the spring of 1842, and there is no pretence that any new fact has been discovered since that time rendering a cross bill necessary. And yet they have waited more than a year, and until the original…
2Cases cited1 opinion
- Fry v. EvansNew York Supreme Court · 1832
3Cited by11 opinions
- Gafford v. Proskauer & Co.Supreme Court of Alabama · 1877
- Wright v. PhillipsSupreme Court of Alabama · 1876
- Lawrence v. VilaWisconsin Supreme Court · 1866
- Lehman, Durr & Co. v. DozierSupreme Court of Alabama · 1884
- Cody v. Turn VereinAppellate Division of the Supreme Court of the State of New York · 1900
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