1 Misc. 457 | The Superior Court of New York City | 1893
The action was to compel the defendant to make and issue to the plaintiff two certificates for fifty shares each of the capital stock of said defendant, in place of certificates alleged to have been lost. The complaint alleged, and the plaintiff proved, that in the year 1883, the defendant issued to one Daniel D. Conover two certain instruments known as scrip certificates for fifty shares each of the capital stock of the defendant, under and by virtue of which the holder thereof became entitled to receive one hundred shares of the capital stock of the said defendant. (2) That Conover, on May 28, 1883, sold and transferred said scrip certificates to Joseph W. Burnham. (3) That Burnham departed this life, leaving a last will and testament, in and by which he appointed the plaintiff his executor, and that the latter duly qualified as such (4) That said certificates have been lost. Upon these facts, the court below made its decree that upon executing and delivering to the defendant a proper bond of indemnity (which was thereafter duly executed and approved), the said defendant issue and deliver to the plaintiff a certificate in due form (according to the prayer of the complaint), stating that Joseph W. Burnham was the owner of and entitled to 100 shares of the capital stock of said defendant. The defendant, in its first point, challenges the jurisdiction of the court upon the
In Frey v. Demarest, 16 N. J. Eq. 236, the chancellor said: “ The Court of Chancery is not deprived of its original jurisdiction hi any case, either by the operation of a statute conferring similar jurisdiction upon the common-law courts, or by the adoption of the principles or practice of the courts of equity.” Citing Atkinson v. Leonard, 3 Bro. C. R. 182; King v. Baldwin, 17 Johns. 384; Sailly v. Elmore, 2 Paige Ch. 497; Varet v. N. Y. Ins. Co., 7 id. 560; White v. Meday, 2 Edw. Ch. 486.
In the recent case of Schroeder v. Loeber, 24 Atl. Rep. 226, the court said: “It is well settled that the jurisdiction of equity is not divested by a statute which gives a court of law power over the same subject. This is the established doctrine.” Sedgwick, in his work on Constitutional Law, page 93, says: “ Where a right originally exists at common law, and a statute is passed giving a new remedy without negative words, the party has an election either to sue at common law or to proceed under the statute.” If the original jurisdiction has been statutory, the new statute might, perhaps, have been held to have been intended as a substitute for the former, as the repeal of a statutory rule is more easily implied than the repeal of a common-law rule. Johnston’s Est., 33 Penn. St. 511. A
Courts possessing jurisdiction in certain matters sometimes decline to exercise it on grounds of public policy or where the interests of justice dictate that the party ought to be relegated to some other forum or remedy. Of these cases a few only -need be mentioned. Congress, for example, may confer jurisdiction upon the state courts, but cannot compel these tribunals to entertain the jurisdiction conferred (1 Kent’s Comm. 403), and the Court of Appeals, in Burdick v. Freeman, 120 N. Y. 426, held that “ the courts of this state may, in their discretion, entertain jurisdiction of an action (for a personal injury) between citizens of another state, actually domiciled therein, where the action was begun and tried, though the injury was committed in the state of their residence and dom
Such is the effect of the decision in Andrews v. Monilaws, 8 Hun, 67, relied on by the defendant. There the court declined to exercise its equitable powers because a more suitable remedy has been recently furnished at law. That case is, therefore, no authority against the jurisdiction asserted here. The distinction between declining to exercise a valid and vested jurisdiction and the acts of a court assuming to adjudicate without any jurisdiction is too marked to require elaboration. The objection to the jurisdiction was, therefore, properly overruled, and the exception to the ruling wholly without merit.
The evidence sufficiently sustains the findings of the court below upon the facts, and an extended review of the evidence becomes unnecessary. The certificates were unquestionably lost, and identified as satisfactorily as the nature of the case required. H the defendant cannot satisfy itself in reference to such identification, there must be something deficient in its system of bookkeeping, a misfortune not chargeable to the plaintiff. The defendant objected at the trial, that no judgment could be awarded in favor of the plaintiff unless Mrs. Burnham, the widow of the testator, was first brought in as a party defendant, under section 452 of the Code, which provides that “where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in.”
It appeared that Mrs. Burnham at one time made some sort of claim on the defendant for new certificates in place of those which were lost, and tendered a bond of indemnity in which it was recited that the lost certificates belonged to her. The defendant, with knowledge of this claim, did not plead the nonjoinder of Mrs. Burnham, nor make any application prior to the trial to have her brought in as a party. But all difficulty on this subject was removed, when Mrs. Burnham was called and examined on the part of the plaintiff,
The theory urged by the defendant that it may be guilty of an overissue of stock if it complies with the decree, is answered by the fact that the new issue merely takes the place of the scrip certificates previously issued (not overissued), and about which there is no substantial dispute. The number of shares is the same, and if any overissue results, it must be attributable to something not before the court, having no relation to the plaintifPs stock, and not germane to the issues decided. The court below had power to award costs, and an allowance, and as no fault is found with the amount, we are not disposed to disturb the discretion exercised, which does not appear to have been abused. For these reasons, the judgment appealed from must be affirmed, with costs.
Fbeedmab and Gildersleeve, JJ., concur.
Judgment affirmed.