20 How. Pr. 193 | N.Y. Sup. Ct. | 1860
If the matters set up in the complaint in the second suit are sufficient to entitle the plaintiff Leonard to a decree reforming the agreement therein mentioned, the same matter would constitute a complete equitable defence in the suit at law first commenced to enforce such agreement. An equitable defence may now be interposed to a legal action, and is equally available with a legal defence. (Haire agt. Baker, 1 Selden, 362; Dobson agt. Pierce, 2 Kernan, 162; Cary agt. Goodman, 2 Kern an, 266 ; Phillips agt. Gorham, 17 N. Y. Rep., 275.) The case of Haire agt. Baker was very much like this. In that case Baker purchased a farm of Haire, and agreed to assume and pay as part of the purchase money a mortgage of $680, and the premises were conveyed to him by deed, in which no mention or exception was made of this mortgage. Baker did not pay the mortgage, but suffered it to be foreclosed and the premises to be sold, and then commenced an action at law on the covenant against incumbrances. Pending this action, Haire commenced a cross-suit in equity to reform the deed, and for an injunction. It was finally held in the court of appeals, that the same facts which entitled the plaintiff Haire -to have the deed reformed in equity, were a complete defence in the suit at law ; but as the plaintiff could not have affirmative relief in such suit at law, and was entitled to such relief, the second action was rightly brought. These two suits were commenced in August, 1848, and the decision in the coul't of appeals was made in September, 1851. The Code, as it then stood, did not provide for giving a defendant affirmative relief. In the session of 1852 the legislature amended the Code in this particular, giving power as contained in section 274 to the court, “ to grant to the defendant any affirmative relief to which he may be entitled.” This amendment necessarily removes
I cannot see in that case, why the equitable defence in the suit at law, if the same were established and sustained, would not have been entirely final and conclusive between the parties, and why any second suit was in any respect ever there necessary. But the court considered that the plaintiff in the second suit was entitled to have the deed reformed in fact. Such reformation the court now can give in a like case to the defendant setting up his equity in a suit at law, and this conforms in my opinion, as expressed in Arndt agt. Williams, (16 Howard, 244,) and in Burns agt. Nevins, (24 Barb.,502,) to the obvious policy of the Code to provide for and require the settlement of all controversies between the same parties relating to the same subject matter, in one action. In accordance with this view the motion in this case should be denied, if the answer of the Auburn City Bank in the suit in equity, of the pendency of a former suit in bar, in which the plaintiffs claim in equity is a good defence, is a good answer. It would be a good answer I think, if the parties were the same in both actions. The equity of Leonard to reform this instrument, would doubtless be lost if he suffered the plaintiff in the suit at law, to recover upon it without interposing in such action, his equitable defence. (Foot agt. Sprague, 12 Howard, 358.) It was essential therefore, for the assertion of such equity that it be asserted by an affirmative action before the commencement of a suit at law on the agreement, or be interposed as a defence in the action at law, (12 How. Supra.) But the plea of the pendency of a former suit for the same cause of action, always contained an averment that the parties were the same in both actions. (2 Chitty’s Plead.,
Motion granted upon these terms.