Dale v. Rosevelt, 1 Paige Ch. 35

Dale v. Rosevelt

1 Paige Ch. 35 | New York Court of Chancery | 1828

*The Chancellor :—There is nothing in the objection, that the injunction has been waived by the neglect to apply sooner to this court, because the counsel for the heirs in the suit at law have constantly protested against the proceedings there; and it does not lie with Rosevelt to complain that he has not sooner been punished for violating the injunction, if a contempt has in fact been committed.

The objection that Dale has no interest in this question, and therefore has no right to complain of the breach of the injunction, would probably be a valid one if the heirs were adults; and even in the case of infants, it would have been more regular if the application appeared in the notice to be made in their behalf, as their guardian or next friend.

If they are entitled to the benefit of the decree, they have a right to apply directly to the court for protection; and this court will not be very rigid in insisting upon that which is mere form, where the application is in fact for the protection of the rights of infants, but will look into the real merits of the application.

The more important question here is, whether the prosecution of the suit at law against the heirs was a breach of the injunction. In the case of Mason’s devisees v. Peter’s administrators, (1 Mun. Rep. 446,) it was held by Judge Tucker, that there was no privity between an executor and the heir or devisee of the land. The same principle is recognized in the Supreme Court of this state, in Osgood v. *37The Manhattan Company, (3 Cowen’s Rep. 622.)[1] A record in one suit cannot be read as evidence in another, un^ess both parties, or those under whom they claim, were parties to both suits; it being a rule, that a record cannot be used against a party who could not avail himself of it, in case it made in his favor. (1 Munford, 394, and 1 Hen. and Mun. 165, per Roane, J.) In Payne v. Coles, Judge Roane says, it is a rule of evidence, that no person can take the benefit of the proceedings in any suit, or any verdict, who could not have been prejudiced thereby, if it had gone against him. (1 Mun. 394.)

The decree in this suit was not binding upon the heirs of Eulton, they not being parties to the suit; and it cannot be *binding upon Rosevelt as between him and them. That the decree could not be binding upon the heirs, was decided by Chancellor Kent on the rehearing in this case. (5 Johns. Ch. Rep. 257.) The heirs are not permitted to take advantage of the perpetual injunction which was granted at the suit of the personal representatives; and the prosecution of the suit at law against the heirs was not a breach of the injunction.

Motion for attachment refused.

2 Cowen & Hill’s notes to Phil. Ev. 7.