
    Palmer v. Lawrence et al.
    
    
      Jury trial. — Competency of judge.
    
    The constitutionality of the general hanking law of 1838 having been affirmed by the court for the correction of errors, the question is res adjudi-cata.
    
    In a foreclosure suit, commenced by hill, in the late court of chancery, a jury-trial is not a matter of right.
    A judge, who was an original subscriber to the stock of a hanking company, but whose interest has ceased, before suit brought, is not disqualified from sitting in a cause in which the banking company is interested.
    Palmer v. Lawrence, 3 Sandf. 161, affirmed.
    * Appeal from the general term of the Superior Court of the city of New York, where a decree had been made, in a foreclosure suit, directing a sale of the mortgaged premises, to satisfy the amount due upon the mortgage. (Reported below, 3 Sandf. 161.)
    This was a foreclosure suit brought in the late court of chancery, by bill, to foreclose a mortgage upon lands in the city of New York, given by Watson E. Lawrence and wife to Joseph D. Beers, president of the North American Trust and Banking Company, on the 12th of September 1838, to secure the payment of the sum of $36,000, in one year, with interest, payable semi-annually. The plaintiff was the special receiver of a portion of the assets of the banking company.
    defendants, by their answers, denied the legality of the organization of the banking company, on the ground that the act of 1838 was unconstitutional ; and set up fraud and usury in the transaction, which, however, was not sustained by the proofs.
    *The cause was transferred to the superior court, under the act 24th March 1849. At the bearing, it was objected, that one of the justices was disqualified from taking part in the decision, on the ground that he was an original subscriber to the articles of association of the banking company. The objection, however, was overruled, it appearing that the judge’s interest had ceased, before the commencement of the suit; and the defendant’s counsel excepted. The defendant’s counsel then requested that a jury might be impahnelled to try the issues of fact raised by the pleadings; which was denied, and another exception taken. *The court decided that the mortgage was a valid security, and made a decree for the sale of the mortgaged premises to satisfy the amount found due thereon; whereupon, the defendants took this appeal.
    
      Western, for the appellants.
    
      Noyes Titus, and Bonney, for the respondents.
   Gray, J.

The first question presented by this case is, as to the validity of the act entitled, “ an act to authorize the business of banking,” passed April 18th, 1838. There has been much diversity of opinion as to the constitutionality of this act; that question, however, has been deliberately passed upon by the court of last resort in this state, and its constitutionality sustained. (Gifford v. Livingston, 2 Denio 380.) The question must, therefore, be regarded as put at rest, by authority binding upon the courts of this state.

The court below was right in overruling the appellants’ motion to impannel a jury for the trial of the issues made by the pleadings. The suit having been commenced in the late court of chancery, was triable by the court, unless, in its discretion, it saw fit to refer the issues to a jury or referee. The code of 1849, under which this cause was tried, required every issue of fact, in an action for the recovery of money, or of specific real or personal property, to be tried by a jury, and every other issue by the court. (§§ 253-54.) These sections were not made applicable to existing suits, as will be seen by chapter 1 of the act supplemental to the code ; the cause was, therefore, properly heard by the court.

It was also objected, in the court below, that the suPe^or *cour^ jurisdiction of the cause. The record shows that it was transferred to that court, by the order of the supreme court, as authorized by the code. No reason was assigned for the objection, and none occurs to me; and inasmuch as the point was not again raised upon the argument here, it will be regarded as abandoned.

The objection to the competency of one of the judges of the superior court to hear the cause was not well taken; he had no interest in the controversy, and none that could be affected by the result.

It is, at least, doubtful, whether the defences of fraud and usury were well set up by the defendant’s answer; but, however that fact may be, they were not sustained. by the proofs.

Decree affirmed.  