10 N.Y.S. 122 | New York Court of Common Pleas | 1890
The judgment should be affirmed on the opinion of Judge Daly at equity term. I recognize, as he did, the force of the suggestion that the retention of the legal title to the life insurance policy may have been part consideration for the abatement of 50 per cent, of the former debt; but there is nothing in the case from which a court could find that it was. There was a settlement between the parties in 1851, in which plaintiff’s assignor received “a full discharge of all demands against him to this date.” The legal title to the policy still remained with defendant’s testator, but, as it seems to me, and as Judge Daly held, such legal title was subject to the provision in the original assignment “the proceeds of said policy, when collected, to be applied to the liquidation of any liabilities that may be due from him to me, and any balance remaining after such liabilities are discharged to be paid over to his [Van Bokkelen’s] legal representatives. ” If all liabilities were settled and discharged in 1851, even though half of the debt was merely forgiven, I cannot see how a court can make a new agreement for the parties, in the absence of any proof of a modification of the original contract between themselves. I think Judge Daly has correctly held on the subject of interest. The mutual business accounts between the parties were settled and closed in 1851. Therefore, as he has shown by argument and authority, the reason for the rule allowing "compound interest ceased to exist. I am also of opinion that plaintiff was not allowed to trespass upon the fair limits of this controversy as drawn by the pleadings. Plaintiff relies upon the original assignment of 1846, and it was within the scope of his complaint to show that the indebtedness of the parties then existing and to accrue from subsequent mutual transactions had been liquidated and settled in 1851, so that the claims reserving the policy to the insured and his personal representatives became operative. Judgment affirmed, with costs.