Mapes v. Coffin

5 Paige Ch. 296 | New York Court of Chancery | 1835

The Chancellor.

The complainant, Mapes, having obtained the first judgment against the personal representatives, and levied his execution upon the goods of the testator in their hands, was entitled to a priority in payment •; the money due upon, the policy?" being legal and not equitable assets, and t.he testator having died previous to the revised statutes. And the amount of the assets being less than the sum which was due "upon the judgment of Mapes, the bill of the appellants was properly dismissed. The merits of the case are therefore clearly with the respondents.

Again; the counsel for the respondents are right in supposing that the question as to the priority of Mapes’ claim i.s not properly before me on this appeal. That question was .distinctly decided, and decreed against the appellants, in September, 1830; and if they were not satisfied with the decision, they should have appealed from that decree. An appeal from the final decree only, cannot bring up a question which had been definitively adjudicated and disposed of previous to the time of making such decree.

There is no pretence of claim for costs, in favor of Davis and Brooks, against the insurance company. If any costs were to be given, the claim for them would more properly have been made on the other side.

The decree appealed from is therefore affirmed, with costs to Mapes, apd the insurance company, who are the only defendants who have appeared on the appeal. Neither of these parties having brought a cross appeal, I cannot alter the decree of the vice chancellor, so as to give them costs in the-original suit, as against the appellants,