Simpson v. McKay

Landon, J.: I am of opinion that the errors of the referee in the reception of evidence discussed by my brother Countryman, were immaterial for these reasons: It sufficiently appears from the opinion of Justice Allen, that, in 1853, the General Term decided upon the evidence taken in the original action, that Andrew McKay did transfer and deliver the bond and mortgage to George B. Simpson. That although no formal judgment can be proved to have been entered to that effect, the McKays, plaintiffs in the cross action, by their complaint, whicli they verified in 1855, only two years after the decision was made, and when they and their counsel must have remembered the fact, not only admitted, but alleged the fact to be, that such decision had been made, and manifestly brought their cross action partly because it had been made. And, although, in 1861, forty-two years after George B. Simpson’s death, and upon discovering that such judgment could not be found, they obtained an order from the Special Term permitting them to strike such allegation from then- complaint, they procured such order upon affidavit that they could prove that such transfer had not been made; yet, under the circumstances, it seems to me just that such order should not be construed as opening the question of transfer further than to permit the McKays to make good their affirmation, [318] to wit: that they could disprove the transfer; thus putting the burden upon them to impeach the decision of the General Term, which, upon the evidence, they must be held not to have done. After the lapse of so many years from the decision of that General Term, it seems but just that Simpson should be permitted to invoke the repose of time upon its conclusiveness and freedom from technical errors. The learned counsel for the McKays insists that in some way they should be permitted to review that decision, and that they have never had the opportunity afforded them, until this appeal, to do so. Be that as it may, it seems to me that when the McKays, in 1855, commenced their cross action and swore to their complaint, they were willing to accept that decision as a finality. If they have since changed their minds, the change is too late. To review a finding twenty-one years after it is made, and reverse it for technical errors, is of very doubtful propriety. I advise an affirmance of the judgment. v