The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-08-08
MODERN HOTEL KEEPING.
Superior Court--special Term.

FUhNWUKE-A bCkAABLh AuONV TIE mVnA
CAGES.
Ctory Slater ogo;na Curtis Judson alexander r. Sts,c
art, Wil,iom III Burroes, Fsancis Warden, John p.
King, Henry Brewster, Randolph W. 7bVnsend, Parsm
Rose James X. Whiting Cornelius Baker Henry Bakers
Hiram Cromston and John Orser, Shvig efhe City and
County of Neic York-H F. Clark and c. Rapao for plain
t Lucien Brdseye for defendants Baker II Hilton and
Judge Beardsley for Stewart, ct a d d. Field for de-
PENDANTS Townsend and Judson Brown Hall and Van
derpoel for the Sheriff.
HOFFMAN, Justce-First the question Of the most prac-
teal Importance in this Is whether the omission
the mortgages take possessi under their mort
ca0es renders their securities invalid against the de
iendant the Stewards the judgmen. creditors The pro-
perty comprised in the mortgages the furniture n
the Bevoort House. occupied by the dcen liant Jud,on
He had lease Of the house. II does not appear how
long period unexpred, but it to May 1855 at
any rate. considerable number of Il rent
ed to occupants at stated price, whose right of possess
sion xed by Their ag nen's and OF them, 1t ia
stated extended TO the LIST Of VA XThe property con-
listed of furniture much 1t bulky in bundled
The defendant Rose Of the mortgages. took
possession under his mortgage the sh ofDecembcr
fhis mortgage dated the 2Sh Of November 1854 and
filed at day; and his rights not contested BY the
judgment. creditors. The mortgage to the Bakers
made the 5th 9th of December, and filed the 9th
The mortgage to Slater dated, and filed the
day But the evidence clearly proves that the Baker
mortgage has a priority it, The mortgage to Town
send dated the Both Of November and filed the t OF
December The possession Of Rose clearly prevented sla
the Bakers from interfering with the property, his
being the prior mortgage As to them there was de-
lay in taking possession except between the 9th OF De-
Carnley e Duer 1897 remains in force omission
take possession In Townsend's case for the period
of nine days could not be deemed evidence Of fraudu
lent intent Immediate possession in the statute does not
ntaneous but possession to be taken within
reasonable time according to the nature OF the proper
ty and circumstances of the case. Il Hofman's Rep,
147 Walker vs. Snediker) My opinion is clear upon
this point that deem It unnecessary to examine the
other and important question raised AZ to the right OF the
Stewards under their alleged levy their execution
ID An objection is made to the Townsend mortgage
the ground that the separate property Of Jadson
ston + Judson This objection Is answered by the
of Kirby Schoomaker 3 Barbour Oh. Rep.
A. and Allen Us. Wells z Pickering $50 No rule Of
law prevents debtor securing debt owing to him
Jointly with another by lien upon his separate proper
". The cases in bankruptcy and administration are on
trely distinct. 3d. The position of the defendant Rose
upon the record and evidence is hs-Hs mortgage Is
contested to its validity in the complaint and he
liable to account mortgage in possession for what
furniture. Judson swears as to the validity and su6
cheney Of the consideration, and notes and other evil
dences of debt produced the trial II offered
to impeach these but the must go TO reference
in particular considered II expeient to allow the
question Of validity to be inquired into upon such refer
But under the testimony given, the mortgage
must be considered presumptivey valid with liberty
to the plaintiff to impcach II before the referee. As
Roses receipts while in possession from the
patton of the premises well the of the furni
ture II would probably be difficult to charge him upon
the basis of the profits received, and apportion
ment Of such profits: and again II may be doubtful
whether he ought TO be charged with anything IL the
whole concern failed to yield any profit 80 that an en-
quiry TO the profits may be essential to right adjud
cation have stated the heads of order Of reference
in the judgment prepared and viii hear the counsel upon
its settlement upon this point which may require more
attention than has yet been given 10 1t. Attn The most
difficult question in the relates to the al
sa s % n Ss an Desa e
nuously and amply argued. shall state conclusions
upon them. LIST. allowed the amendment of Stewards
at the trial. setting up usury ground for in
ting the plaintiffs mortgage, when no allegation
whatever Of that nature contained in the original
answer have done this under the belief that the de-
cision Of Catin vs.. Guner in the Court of Appeals
Keenan, $751; must lead 10 such result Probably the
has arisen in stronger form against the
amendment than in the present instance and with my
views before judically expressed to the stricnes
which should attend the allowance Of defence of usury
shall be glad if superior tribunal finds me to be in
d. Can The Judgment creditors In this avail them
selves Of the alleged in the previous security Of the
PLAINTIFF The act Of 1897, which removed certain diff
cues under the Revised Statutes and enforced the
visions there made gave the right to borrower 10 file
bill for the purpose Of setting aside usurous security
Even where discovery necessary to establish the
usury bin could DO stained for this purpose without
payment of principal the legal interest The settled
dnctrae OF Court OF Chancery which gave renef only
npon such payment, thus superseded. But tn,
Court Of Errors in Foot the Bank OF Utica, Ill.,
a9 confined this comprehensive relief to the borrower,
the party actually receiving the money, and to his i'm
mediate representatives heirs executors II
pressly decided that purchase under sheria's
s The n III. in ss se
was reversed The Of Rexford w. Urdyre e Com
stock 1919 followed this decision applying Il 70 the case
ment confessed the ground Of usury. His bin was
dismissed II does not follow from these authorities that
the judgment creditor the mortgage could not set
usury defence whom the holder sought 10 enforce his
security Several judges have however, supposed that
these to that extent But another aud very linz
portant class Of affects the present question.
ihink warranted in saying that the rule now Is that
grantee Of equity Of redemption, fthat Is
shown that equity Of redemption intended to
BE- transerred) cannot set up usury In AS defence
state the proposition in this form TO distinguish Il from
the in which the conveyance made expressly sub
ect TO mortgage. The leading authorities Schufedt
N. schufcid Paige, 145 schermerhorn the Ameri-
can Insurance Co.. IA Barbour 167; Wells Chapman,
4ssndf, c. r. $50, 10 Barbour 5s1 Cole W. savage 10
Paige DE Wofv johnson, 10 Wheaton, 367, may also
be referred to- The principle upon which these cases
pay affirm the usurious demand. lie transfers the
property, recognizing and affirming the mortgage, and
declining to transfer his right 10 impcach IT, II Is then,
the intention Of the transfer which prevents the acsi
ton OF the right by the grantee That intention is clear
proven ~ words IN the instrument 'he gran,
where the grantee to pay it. But still this Is but
evidence though Of high nature That proofmay given
Of sale having been made, expressly stating in written
terms that mortgages liens upon the property, Is
shown, think, by Wells Chapman although the
question there may well be treated as n subordinate one
whether ~ parol testimony Of declarations at the
time VI be sufficient Is question Of rule Of evidence
only in the present case Judson gave voluntary
different nature from assignment The creditors
then informed 81 the existence Of the mortgages given by
Judson, and given nearly coternpcrsneoasly. They
sought the judgment for the purpose Of enabling them 20
take measures against property in Connecticut JuSon
swear lie never intended and does not wh to have
the defence OF usury set TO impair Skaters mortgage
think his testimony admissible, 80 show that he meant
TO transfer nothing but right subject to the mortgage
and had he sworn that he told Stewart he mast take
subject 20 the mortgages, should feel no doubt HIS
evidence does not up 10 this. But think the
tusl Information given at the time, and the oath 70
what he intended then l. sufficient The strongest cae
In the books which Of In opposition to these
views, Is that Of Xix Van wyck, Hin, SO. The
distinctions these-the judgment there not by
confession, but hostility There L. evidence o
knowledge Of the existence IL the mortgage In the iudg
nent creditor The sheriff (bc defcndant,) had taken
the goods execution, and the line 81 Argument In the
opinion Of tho Court leads W the supposon that they
had been sold The mortgage brought rcplesin There
"A another view Of the question which may deserve
a careful consideration. This action IL plainly
Of equitable character, and the rules Of Court
a Chancery must govern the decision. The settled doc
rine, before observed that the Court would not
dispace security for usury the application Of any