McKinstry v. Thurston
New York Supreme Court
The defendant confessed a judgment in favor of the plaintiffs in a large sum, for thé purpose of securing and paying his creditors in the order specified in a classification accompanying the confession.
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The defendant confessed a judgment in favor of the plaintiffs in a large sum, for thé purpose of securing and paying his creditors in the order specified in a classification accompanying the confession. McKinstry and other creditors of the defendant alleged that the amount directed to be paid to Phebe W. Thruston, one of the creditors of the first class, exceeded the debt due to her. and moved the court that she be restricted to a certain sum, or that a feigned issue be ordered to ascertain the amount due to her. Voluminous affidavits were read.
1Opinion of the Court
The Court, the Chief Justice presiding, came to the conclusion that there were no grounds to impeach the fairness of the transaction in respect to the debt, the amount of which was sought to be reduced ; and in delivering his opinion, the chief justice observed: “ Having come to this conclusion, it is almost superfluous to say that this is not a proper case for a feigned issue. The application is made to the equitable powers of the court; and, in such cases, it is competent and pro*223per, and even necessary, for the court to decide questions of fact. If the testimony be so contradictory as that…
2Cited by3 opinions
- Lake v. CookIllinois Supreme Court · 1854
- Kendall v. HodginsThe Superior Court of New York City · 1858
- Shaw v. . DwightNew York Court of Appeals · 1863