152 N.Y.S. 684 | N.Y. App. Div. | 1915
No sufficient ground appears to reject the findings made by the learned referee, who saw and heard the conflicting witnesses. We now have no such opportunity as he had to weigh their credibility and to find on which side was the truth. Furthermore, the natural probabilities seem to favor the plaintiffs, especially on the issue as to which party should bear defendant’s share of the administrative expenses to be incurred by the reinsurance committee. Neither can defendant now defeat recovery on the ground that this was not a suit in equity because plaintiffs had a remedy at law. The relief sought was that the court should pronounce and declare broken a subsisting contract, and enjoin paying over certain moneys subject to plaintiffs’ claims. This power to adjudge such a breach and to free one party from going on further under the contract, with an injunction against removal of the funds from the State, rests in equity. (16 Oye. 108.) That, after suit had been begun and injunction issued, the parties themselves by mutual stipulation terminated the contract, did not detract from the original character of the suit. After consenting to refer all the issues, and without raising such a point before the referee, defendant cannot now be heard to say that plaintiffs’ remedy was at law triable only by a jury. The judgment is, therefore, affirmed, with costs. Jenks, P. J., Burr, Carr, Rich and Putnam, JJ., concurred. Judgment affirmed, with costs.