79 N.J. Eq. 93 | New York Court of Chancery | 1909
Our court of errors and appeals in Lutjen v. Lutjen, 64 N. J. Eq. (19 Dick.) 773, has made it clear that this court should not enforce a claim which has not been diligently prosecuted when it is apparent that the delay of complainant may have caused a loss of evidence to the injury of defendant. In the present case, complainant allowed over five years to transpire before filing the present bill, after defendant had absolutely refused to recognize the transaction as a loan. The present difficulty in ascertaining the truth arises from this long delay. The memory of complainant and her husband is wholly unreliable, touching many important features of the transactions which must have occurred. The bill asserts that prior to the execution of the assignment complainant’s husband borrowed from defendant $750, and that complainant borrowed at that time $25, and that the assignment was executed to secure those loans. The direct testimony of complainant and her husband was substantially
My' conclusion is that complainant has not sustained the burden of proof with that clearness or certainly which entitles a court of equity to award the relief here sought; and that the long delay' of complainant in the assertion of her claim has ren