10 Abb. N. Cas. 149 | N.Y. Sup. Ct. | 1881
— So far as the suit is based upon the want of jurisdiction in the superior court, I have never had any doubt from the commencement that it was not well founded. If the averments of the complaint on that head be true, then these purchasers have take n no title and these infants have not been injured. It would only be necessary for the infants to bring ejectment. The case has been heard through on the theory that there was fraud in fact outside of the record and that the infants were injuriously affected by that fraud. So far as I can glean from the testimony and the arguments of counsel the finger has been put upon but two specific acts of alleged fraud. The first is the conduct of certain parties with respect to Young’s tenancies by the courtesy, and the second is with regard to the allowances. All else is innuendo. There is no suggestion that the infants have been otherwise deprived of any of their just rights by this litigation in the superior court. I speak now in a general way.
Certainly the property has been divided according to law. No infant has been given a quarter when he was entitled to a third; no person has been given a fifth when he should have had one-half. The distribution was right and correct. No matter what the court did, it was done in accordance with law and in accordance with the will. Now then, as to Young’s tenancy by the courtesy, it is charged in substance that if that claim had been properly and loyally resisted Young would havé failed and that the others would consequently have correspondingly benefited. But the first answer to that is, Young is not a party here. Again, these purchasers had nothing to
But are we to set aside even that part of the decree which gave Young his tenancy by the courtesy without hearing him ?
There is no one before the court except the purchasers under the decree. It seems as though all the parties to that decree, with the exception of Mr. Langbein, had got together and brought this suit against the purchasers, charging upon their attorneys collusion to bring about an inequitable distribution of the proceeds of the sale. And strangely enough they left out the person (Young) who is most seriously interested. Surely the bare statement of that fact shows that this suit is untenable.
Apart from that, even if Young were a party to the suit, I should be sorry to say there was fraud. There is just that one suspicious circumstance that the suit in the superior court proceeded without Robertson. That may be a disagreeable fact possibly, however susceptible of explanation, but it is not sufficient of itself to justify the court in setting aside this solemn and most elaborate judgment.
Then there is really a great deal to be said upon the other side. This for instance, that even if the supreme suit had not been consolidated, even if it remained to-day in full validity ready to be proceeded with, yet the same as to Young’s tenancy by the courtesy could have been properly determined by the superior court. It is true it could have been determined here first if the parties had chosen to proceed to the trial independently in this forum, but I should be sorry to say that their preference for a single trial of all the issues in the -superior court, including this of Young’s, was conclusive evidence of fraud.
The evidence would have to be very conclusive that as a part of this scheme Eobertson was left out. I should find it utterly impossible on this evidence to find these facts or to
Independent of what I have stated of Young not being a party, of the absence of fraud, in fact of the remedy in the other court, there is the additional fact that his suit is against
I am satisfied this case can proceed no further, and must be dismissed on the merits, with costs.
Note. — Another action was brought about the same time in the supreme court, wherein Louis 0. Muller, an infant, by Leroy B. Crane, Ms guardian ad litem, was plaintiff, and Auguste Wiedersum, Thomas H. Young and others were defendants. The complaint in this action alleged substantially the same facts as to the fraud and collusion between the attorneys as was alleged in the action tried before Mr. justice Babrjett and dismissed by Mm. In this complaint the following relief was asked:
M.rst. That the judgment of the superior court, so far as it relates to or concerns the alleged interest of the defendant Young or those claiming under or in succession to Mm, be vacated and set aside upon the following grounds:
1. That upon its face it appears, as to the claims of said Young, to have been unjustly and improvidently made.
3. That the. same was procured by fraud and imposition on the court.
3. That the court had no jurisdiction of the subject-matter or of the parties.
4. That the superior court had no power to consolidate an action pending in the supreme court with an action pending in the superior court.
5. That all orders and proceedings had therein based upon “consent” of the attorneys or of the adult Struppmann after his appearance and that of his children by an attorney of record, was illegal and void.
The case was tried before Mr. justice Donohue at the June, 1881, equity term, and after the plaintiffs had rested their case, James H. Hawes,
I. If there are any irregularities or mistakes in the judgment the proper remedy is by motion in the court in which the judgment was obtained, or by appeal from that judgment. This court will not sit in review of the superior court judgment. If the judgment is void, then this action cannot be maintained (Stewart agt. Palmer, 14 N. Y., 183 ; Wells agt. City of Buffalo, 80 N. Y., 253).
II. Having charged indiscriminately parties and reputable attorneys with conspiracy and fraud, and having called in question the integrity of the superior court judgment after its rendition, the plaintiff, through his attorneys, has failed to prove any fraud, collusion or conspiracy. He has just been defeated in a similar case only a few days ago in this court after a patient and protracted hearing before Mr. justice Bahrett, where that justice allowed almost incredible latitude of proof.
III. The complaint should be dismissed with costs on the authority of Smith agt. Wilson (62 N. Y., 286).
Ohwrles Strauss, Darnel T. Bobertson and Bdjga/r A. Hutchings, for plaintiffs in opposition, contended that a case had been made out on the evidence and proofs.
Donohue, J.—No fraud in procuring or entering the judgment complained of is shown, and I do not think that judgment can be reviewed in this action.
Judgment for defendants.
Findings were then signed and judgment entered. That in the procurement of the superior court judgment there was no fraud or imposition practiced upon the parties to that action or upon the court, and that said judgment was not fraudulent and that there were no facts or evidence produced before him to justify the allegations in the complaint or to make a cause of action out of the same. Tne costs and disbursements were ordered to-be paid by Leroy B. Crane, the guardian ad litem, personally.