text:
    THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants v. JAMES M. SMITH, Impleaded, etc., et al., Respondents.

      Vacation of judgment upon the ground that no process had ever been served upon the defendant Smith, and that he never authorized any one to ap- ‘' pear for him, etc.

    This is’ an appeal from an order vacating the judgment as to defendant Smith.

      Held, that under all the circumstances and facts, and in view of the same as set forth in the opinion of the court, the court below was justified in vacating the judgment unconditionally.
    Before McAdam and Gildersleeve, JJ.

      Decided October 24, 1892.
    The plaintiffs claim that the action was commenced by the service of a summons on the defendant Smith on July 21, 1868, and on the other defendants on July 24 and 25, 1868.
    That all the defendants appeared in the action August 4, 1868, by Frank S. Smith, as attorney. The notice of appearance is entitled in the “ Supreme ” Court, and is for “ the defendants ” without naming them. It is dated August 4, 1868. No proceedings seem to have been taken in the action until February, 1890, when the corporation counsel served a notice of application for judgment as by default, which motion he subsequently abandoned. The plaintiffs thereafter and on January 19, 1892, filed with the clerk of this court, a judgment roll as by default, reciting the appearance of all the defendants by attorney, and annexing to the roll the notice of appearance aforesaid, whereupon the clerk entered judgment against said defendants for $9,984.18. No proof of the service of the summons or the complaint was annexed, and no legal proof of the service appears in the appeal book.
    The defendant Smith thereupon moved to vacate the judgment as to him, upon the ground that no process had ever been served upon him, that he had no knowledge whatever of the action until the service of the notice of application for judgment' in 1890, which was abandoned, and that he had never authorized any one to appear in the action for him.
    The court granted the motion and vacated the judgment as to said defendant, and from the order aforesaid, the plaintiffs appeal.-

      William H. Clark, counsel to the corporation, and John J. Delany and Terence Farley of counsel, for appellants, argued:—
    I. Where the judgment recovered is regular between the parties to it, the settled practice of the court is opposed to setting it aside for the mere reason that the appearance was in fact unauthorized. Upon this subject the rule is uniform in courts both of law and equity. Powers v. Trenor, 3 Hun, 5; Adams v. Gilbert, 9 Wend., 499; Kenyon v. Schreck, 52 Ill., 382; Sperry v. Reynolds, 65 N. Y., 183. In Sperry v. Reynolds, swpra, the court said: “ In courts of record which have attorneys it has been held, for reason of convenience and public policy, that a party may be bound by an unauthorized appearance of a responsible attorney. In those courts the attorneys are licensed as such, and are authorized to appear and represent parties in the court. They are, in a certain sense, officers of the courts, and, to a certain extent, are under the control of the courts, which can exercise a coercive power over them ; and the courts can, in the action in which an unauthorized appearance has been put in, give a party such relief against it as he ought to have. Denton v. Noyes, 6 Johns., 296; Hamilton v. Wright, 37 N. Y., 502; Brown v. Nichols, 42 Ib., 26.” Although the attorney appeared without authority, courts of law hold the record conclusive to uphold the validity of the judgment, leaving the defendant to his remedy against the attorney for damages, if solvent, or in equity if insolvent. Carpentier v. Oakland, 30 Cal., 439 ; Ward v. Barber, 1 E. D. Smith, 423 ; Allen v. Stone, 10 Barb., 551; Wilson v. Wilson, 1 Jac. & W., 437; Wade v. Stanley, 1 Ib., 654. “ The Supreme Court of Pennsylvania have acted on the same principle. In McCullough v. Guetner, 1 Binn, 214; an attorney undertook to appear for a defendant not summoned, and without any warrant of attorney, and the court held the appearance good. In England, the Court of King’s Bench, on the same ground compelled an attorney, who had, through misinformation, undertaken to appear for the defendant, without warrant or direction, to complete his appearance, so as to render the judgment which the plaintiff has taken by default, regular. Lorymer v. Hollister, 1 Stra., 693.” Tally v. Reynolds, 1 Ark., 99; 31 Am. Dec., 737.
    II. There being no pretence in the case at bar that Frank S. Smith, or his estate, is insolvent, it was improper for the court below to set aside the proceedings. On this point the attention of the court is called to the case of Adams v. Gilbert, 9 Wend., 499, where Chief Justice Savage, in denying a motion to set aside the proceedings on the ground that a general appearance for all the defendants was unauthorized, held that the defendants, although all of them had not been served with process, were bound by the appearance of the attorney “ unless they show that he is irresponsible and cannot respond to them in damages.” In Bunton v. Lyford, 37 N. H., 512, it was held that where a regular attorney appears without authority and answers for the defendant, and judgment is recovered against him, it will not be vacated, or execution enjoined by a court of equity, unless the attorney is not of sufficient ability to answer for the damage he has caused, or unless there was collusion between him and the plaintiff. See also, Smyth v. Balch, 40 N.H., 363; Grazebrook v. M’Creedie, 9 Wend., 437. “ Where an attorney has appeared for a defendant without authority, the court will not, unless the attorney is irresponsible, set aside the judgment, but will leave the defendant to his action against the attorney.” Bogardus v. Livingston, 7 Abb., 429. “Numerous cases might be cited to the same effect, both in our own and the English courts, were it necessary. It is enough that the rule in such cases is well settled, and is still adhered to, both in this state and in England. In the anonymous case in 1 Salk, and 6 Mod., the court said: “If an able and responsible attorney appear for another, without a warrant, and judgment is against him, the judgment shall stand, and the party shall be put to his action against the attorney, but if the attorney be a beggar, or in a suspicious condition, the court will set aside the judgment.’ This distinction has been adopted by our courts in this state, and thus by a strange confusion of ideas and principles, the validity of a judgment in such a case has come to depend upon the pecuniary condition of the attorney, instead of the jurisdiction of the court.” Williams v. Van Valkenberg, 16 How. 147; Stern v. Bentley, 3 Ib., 333. “ When the proceedings are in court and the attorney does an unauthorized act for a party prejudicial to him, the party may have relief against such act if the attorney is'irresponsible. The relief is given in the action, and care is taken to preserve&tke rights of the other innocent party, and as to third persons.” Lett v. McMaster, 51 Barb., 242. “ * * * The remedy of the party is against the attorney, for appearing and acting in his name without authority. Where it appears that the attorney is irresponsible, the court, in order to protect the defendant, in case he swears to merits, will let him in to defend, allowing the judgment to stand as security.” Blodget v. Conklin, 9 How., 444. In American Ins. Co. v. Oakley, 9 Paige, 499, the chancellor said: “ Where the adverse party has acquired rights, or been subjected to costs, by proceedings in the name of a party who afterwards denies the authority of the attorney or solicitor who has thus proceeded, the courts are in the habit of permitting the proceedings to stand, where the solicitor or attorney is a responsible man ; and leaving the party injured by such unauthorized proceedings in his name to seek his redress against such solicitor or attorney, by a summary application to the court, or otherwise.” Dundas v. Dutens, 1 Ves., 196 ; Denton v. Noyes, 6 Johns., 297; Cox v. Nicholls, 2 Yeates’ Rep., 547 ; Ex parte Stuckey, 2 Cox’s Ca., 283. (r In the present case there is no pretence that the solicitor * * * is not perfectly able to respond in damages to them if he has acted without authority. It is not necessary, therefore, for the protection of their rights that the proceedings * * * should be set aside as unauthorized. * * * ” The reason of this rule is apparent, and it has been concisely stated by Judge Woodbuff, as follows: “ And if it be asked, why should the party for whom he appears be .left to seek his remedy against the attorney ?—why should not the party who has been, subjected to an unauthorized litigation pursue that remedy, rather than cast that hazard and burden on one who has done nothing to deserve it ?— the answer lies in the suggestion already made, that the law warrants a party in giving faith and confidence to one who, by law, is authorized,to hold himself out as a public officer, clothed with power to represent others in the courts. And, besides this, the consequences of the contrary rule would often be altogether disastrous. Evidence would be lost; witnesses die ; the Statute of the Limitations bar claims ; and death of parties themselves might often happen. In various ways, to set aside proceedings at the end of a protracted litigation would be to work inevitable wrong to the party who had relied upon an appearance.” Hamilton v. Wright, 37 N. Y., 504; Brown v. Nichols, 42 Ib., 26.
    III. The motion below should have been denied on the further ground that the defendant Smith does not swear that he has any defence to the action. In Bogardus v. Livingston, 7 Abb., 429, the court said : “ If the defendant, however, swears to merits, the court will allow him to come in and defend, suffering the judgment to stand that the plaintiff’s lien, acquired by the judgment, may be preserved.” Judge Wells, in the case of Blodget v. Conklin, 9 How., 444, also states that the defendant will be allowed to come in and defend providing he swears to merits, and all the authorities seem to be uniform in holding that where the defendant does not profess to have any defence to the action, even where the attorney appears without authority from him, he will not be allowed to come in and defend, but is relegated to his action against the attorney by whose conduct he has suffered damage. “ When the defendant makes affidavit that he never employed the attorney, and no process has ever been served on him, if he can show that he had a good and legal defence to the action, of which he might have availed himself if he had been served, he has a right in equity, at least, to interpose that defence.” Walworth v. Henderson, 9 La. An., 339; Weeks on Attorneys, 371. Judge Rumsey, in his work on Practice (Yol. 1, p. 196), lays down the rule that “ in motions in which the defendant asks for a favor at the hands of the court, or in which the discretion of the court is invoked, it is necessary that he make an affidavit of merits.” In Vanderbilt v. Schreyer, 81 N. Y., 648, it is said that whether the power of the courts to set aside judgments “ snail be exercised in any case rests in its discretion,” thereby plainly implying that an application of this character is purely discretionary.
    IV. It was improper for the court below to decide the conflicting questions of fact on mere affidavits, and the disputed question should have been sent to a referee for determination. This is the course pointed out by the Court of Appeals in Vilas v. The Plattsburgh and Montreal Railroad Co., 123 N. Y., 440, where, in an application similar to the one at bar, Judge Andrews says: “If the facts are controverted, and the court is not satisfied upon the affidavits and papers presented as to what the real facts are, it may refer the matter for the purpose of taking further evidence, and may require the parties to submit to an oral examination or cross-examination, Code Civ. Pro., § 1015.” It is apparent in this case that there is grave question as to whether or not the defendant Smith was served with process. Where material questions of fact arise, in reference to which the evidence is conflicting, a party seeking relief should be left to an action, provided it can be obtained in that form, rather than determine the question on motion and exparte affidavits. Hill v. Hermans, 59 N. Y., 396. Discharge of a judgment will not be ordered on conflicting affidavits without a reference. Williams v. Irving, 1 Han, 720.
    _ V. setting aside judgments obtained through the unauthorized appearance of an attorney, the courts have always protected the innocent party, and it was erroneous for the court below to leave the plaintiffs absolutely without redress. It is confidently asserted that in no reported case in this State has the court acted so arbitrarily as in the case at bar. The plaintiffs’ judgment has been set aside, and an adjudication has been made that the defendant Smith, as a matter of fact, was never served with process. This has the effect of depriving the city of all redress, as another action against the defendant Smith would be barred by the Statute of Limitations.

      VI. In actions affecting public interests, such interests will not be allowed to be prejudiced by mere delay in their assertion. In Brooks v. The Mayor, 12 Abb. N. C., 350, Judge Lawrence, in his opinion, quoted from the case of Lunny v. The Mayor, 14 Weekly Digest, 140, as follows : u It is true that great delay has intervened between the service of the answer and the application for leave to make the amendment to it now proposed, and in actions against an individual or a private corporation that delay would present a very serious obstacle in the way of the success of the application itself. But in an action affecting public interests which ordinarily do not stimulate that degree of earnest zeal and activity which is aroused in individuals affected by legal proceedings, the same considerations cannot be rigidly applied. It therefore becomes the duty of the court, as well, as of the officials themselves, to see that no substantial injustice shall be permitted. Seaver v. Mayor, 7 Hun, 331. The public interests are not to be. allowed to be prejudiced by delays of this nature.” In Greer v. The Mayor, 1 Abb. N. S., 206, the court said: “ The measure of neglect which is applied to cases against individuals for their own acts or neglect, for which they are themselves responsible, ought not to be applied to public functionaries representing parties who are made liable for acts or omissions of which they are ignorant. The principle of the maxim, Nullum tempus oecurrit regi, in a modified form is applicable to such a case, namely, that the community or its representatives cannot always be supposed to be aware of an unjust invasion of its rights.” See also Broom's Legal Maxims, *62. In Seaver v. The Mayor, supra, the plaintiff was non-suited at circuit. The judgment was affirmed by the general term but reversed by the Court of Appeals and a new trial ordered. After this reversal, the defendant moved to amend its answer which motion was denied by the special term. Upon appeal, the order of the special term was reversed, the court saying: “ Public interests, unfortunately, are not as sedulously guarded or as thoroughly protected as those affecting individuals, and the most stringent rules of practice cannot for that reason be applied to litigation involving them ; more lenity is required concerning them, for the purpose of avoiding the proper enhancement of public burthens by the allowance of demands having no just foundation.”

      William H. Newman, for respondents, argued :—
    I. If the notice of appearance as served had been in the Superior Court it was an unauthorized appearance and void. There is no manner of doubt now, under the decisions in this State, that where no process was served on the defendant, an unauthorized appearance will be set aside and all proceedings vacated on a direct application made in the action. In Burton v. Sherman, 20 Weekly Digest, 419, it was held that there was no distinction between an unauthorized appearance and a forged notice of appearance, no jurisdiction being had in either case,' and all proceedings based on the unauthorized appearance was vacated. The responsibility of the attorney was declared unimportant, as the court acquired no jurisdiction. In no reported case that has come to our knowledge has redress been refused to a defendant attempted to be held by an unauthorized appearance where no process was served upon him where a direct application was made in the action itself. In all cases where relief has been refused it was sought collaterally. A brief reference to cases will sustain my contention. In Hamilton v. Wright, 37 N Y., 505, relief was refused, upon the ground that the attorney was properly authorized to bring the action by the grantee in the name of the grantors under § 111 of the Code, to oust a party in possession, and is distinguishable from the case at bar. In Brown v. Nichols, 42 N. Y., 26, the court held that a judgment against a party not served with process, but for whom an attorney appeared without authority, cannot be raised collaterally. The court points out the remedy. Judge Earl, delivering the opinion, says: “ I think a party should always seek relief for an unauthorized appearance in the suit in which it has been put in.” Judge Ingalls concurring, says: “If a party will omit to apply to the court for relief against an unauthorized appearance of an attorney, he should not be allowed to attack proceedings collaterally upon such ground.” In Sperry v. Reynolds, 65 N. Y., 186, The rule is stated by Dwight, Justice, as follows: “ the rule of law in this State is that a judgment recovered in a court of record cannot be attacked collaterally upon the ground of want of service or the unauthorized appearance of an attorney.” In Ferguson v. Crawford, 70 N. Y., 254, there is a most elaborate opinion delivered by Judge Rapallo, in which he examines many of the preceding cases, and in which a different rule than that in Sperry v. Reynolds, supra, was enunciated, viz.: that where process was not served the appearance of an unauthorized attorney gave the court no jurisdiction over the defendant, and he could set it up collaterally in another action to enforce the judgment against him. The court further says, it is no good answer to say that the party injured has his remedy against the attorney who appeared without authority ; that in most instances it would be a barren remedy. (It is especially so in the case at bar as the attorney long since deceased..)
    II. The plaintiff will probably rely on the case of Denton v. Noyes, 6 Johns., 296, which holds that where no process was served and an unauthorized appearance was put in, the judgment would not be set aside, but the defendant must seek his remedy against the attorney unless he was irresponsible. The court relied upon some early English cases for this doctrine, and the dissenting opinion of Van Ness seems to be nearer the present rule as laid down in more recent cases. The English cases relied upon in Denton v. Noyes, were reversed in Bagley v. Buckland, 1 Exch., 1. It is submitted that the rule in Denton v. Noyes should not be followed for the reason that the cases on which it was based have been overruled by the latter English cases ; that it is contrary to natural justice and to the common law of England at the present time, and because it has never been followed in a single reported case in this State, and although not in terms overruled, the doctrine therein enunciated has never been applied here; but all cases of similar character have been distinguished, and the relief sought has been uniformly granted as a reference to the cases died will demonstrate. Even in the case of Denton v. Noyes, while the court lay down the harsh doctrine that has been before alluded to, so far modified it as to grant the very relief that was sought. The rule in Denton v. Noyes has been sharply criticised in a great number of recent cases which have been distinguished from that case. It is not the rule in this State as the following case will show. Allan v. Stone, 10 Barb., 547; Williams v. Van Valkenburg, 16 Hun, 144.
    III. The relief granted at special term was proper; the notice of appearance was a nullity in this action. There was no service of summons, so the court never got jurisdiction over this defendant. If the notice of appearance had been served in this action it was a nullity, because it was unauthorized. The law laid down in Burton v. Sherman, supra, puts an' unauthorized notice, of appearance on the same basis as a forged notice of appearance; jurisdiction is not acquired in either case. This defendant was never before the court until he came in specially to move to set aside the alleged appearance. The court never obtained jurisdiction of this defendant. It can acquire jurisdiction over him only in the way prescribed by law, viz.: by service of summons on him, or by a voluntary appearance. The order made at special term was a legal right.
   By the Court.—McAdam, J.

The plaintiffs are certainly guilty of great laches in allowing an action commenced in 1868 to slumber twenty-four years, when according to their theory they were entitled to take judgment as by default for want of an answer in December, 1868. The defendant was sued as surety on a lease made to one Allerton, who, at the time the plaintiffs claim they were entitled to judgment, owned real estate and was solvent. He is now irresponsible. Under such circumstances the defendant cannot be censured by being seemingly technical as to plaintiffs’ practice in regard to the manner and form in which their judgment was entered. The court below, in disposing of the motion, inferentially found that the defendant was never served with process ; that the appearance interposed for him was without authority; that he had no knowledge of the action until February, 1890, when the plaintiffs served the notice of motion for judgment which they afterwards countermanded; and that he was out of the jurisdiction of the court during all of July and August, 1868.

On these facts one would naturally suppose that the fundamental rule applied—that to render a judgment of a court effectual as one in personam, it is necessary that the parties interested he subjected to the process of the court by personal service; that the fiction that an appearance is equivalent to such service applied only to cases wherein the appearance was authorized, and that there can be no such authority unless the relation of attorney and client actually subsists; that the suitor had the right to select his own attorney; that the relation cannot he created by the attorney alone, and that the court in which a judgment was entered must, in a direct proceeding for the purpose, relieve the defendant unconditionally from a judgment entered wholly on an appearance by an unauthorized attorney; but these principles apply only to foreign and not to domestic judgments. Ferguson v. Crawford, 70 N. Y. 257; Kerr v. Kerr, 41 Ib., 272; Hoffman v. Hoffman, 46 Ib., 30. The reason for the distinction seems to be that it would be unreasonable to require the defendant to go to the court of the foreign state which rendered it, and “ attack it directly by a bill or motion; hence he is permitted to plead the want of authority in the attorney, defensively and collaterally; whereas, in the case of a domestic judgment, it is deemed better to force the party to assail it directly in the jurisdiction of his domicile (thus giving the court an equitable control over the proceedings) hy precluding him from resorting to the plea of want of authority in the attorney, collaterally as a defence to a sc ire facias, or direct action on the judgment. Wells on Attorneys, p. 358. Hence a domestic judgment rendered against a resident, hy a court of general jurisdiction against a party who has not been served with process, hut for whom an attorney of the court has appeared, though without authority, is neither void nor irregular. Denton v. Noyes, 6 Johns., 296, followed as authority in Vilas v. P. & M. R. R. Co., 123 N. Y., 453 ; and see Powers v. Trenor, 3 Hun, 3 ; Adams v. Gilbert, 9 Wend., 499 ; Sperry v. Reynolds, 65 N. Y., 183 ; Leet v. McMaster, 51 Barb., 242, and kindred cases. Sfill a party is entitled to relief when an unjust judgment though a domestic one has been rendered against him by fraud or collusion, or by the appearance of an unauthorized attorney, if the party seeks the relief by hill or motion promptly (Wells on Attorneys, p: 359), but unless special circumstances necessitate a resort to a court of equity, relief by motion in the action in which the unauthorized appearance was entered is proper. Vilas v. P. & M. R. R. Co., supra. The practice warrants a party in giving faith and confidence to one who, hy law, is authorized to hold himself out as a public officer, clothed with power to represent others in court; and when an attorney appears for a party his appearance is recognized and his authority will be presumed to the extent at least of giving validity to the proceeding (Ferguson v. Crawford, supra; Hamilton v. Wright, 37 N. Y., 504; Brown v. Nichols, 42 Ib., 26,) which is the reason why an appearance by an attorney, without warrant, is good as to the court. Denton v. Noyes, supra. It is the official position of the attorney as an accredited officer of the court, that gives rise to the implication that he possesses the authority he assumes to exercise, for in ordinary cases the presumption does not attach, and where one is sought to he bound by the act of another who assumed to act as his agent, the party seeking to hold him bound by such act must show the agency. The object of the direct proceeding to the court which rendered the judgment is to enable it to give the relief necessary, without doing injustice to the plaintiff or to innocent third persons who may have acquired rights under the judgment.

Whether the judgment ought to be vacated entirely or allowed to stand as security with permission to the defendant to come in and defend, is a question addressed to the discretion of the court in which the judgment was recovered, to be exercised upon equitable principles in furtherance of justice according to the peculiar circumstances of each case; for, as the Court of Appeals in Sperry v. Reynolds, 65 N. Y., 182, said, 11 the courts can, in the action in which the unauthorized appearance has been put in, give a party such relief against it as he ought to have.” In Ferguson v. Crawford, supra, it was held that while an unauthorized appearance would bind the defendant, he was not precluded from showing that the paper was a forgery. In Burton v. Sherman, 20 Week. Dig., 419, the court held, that there was no distinction between a forged notice of appearance and an appearance by an attorney not authorized to give it, as the notice in neither case reaches the party. This case is not in harmony, however, with the controlling authorities upon the subject.

In Vilas v. P. & M. R. R. Co., supra, the rule in regard to judgments entered on unauthorized appearances was re-affirmed, hut the case distinguished from those concerning domestic judgments, because the defendant was a resident of another State and not within the jurisdiction of the court, and it was held that the rule relating to foreign judgments applied to one so situated, and that the court below ought to have vacated the judgment. See also Nordlinger v. De Mier, 54 Hun., 276. The defendant here was out of the jurisdiction of the court at the time of the unauthorized appearance, but being a resident of the city of New York, the exception in favor of non-residents of the State does not apply. In some cases the courts have denied all relief in cases of domestic judgments, leaving the injured party to seek his remedy against the attorney (where he appeared to be a responsible person) either by summary application or action. American Ins. Co. v. Oakley, 9 Paige, 499, and kindred authorities. The attorney who appeared for the defendant is dead, and it is not shown whether he left any estate to which the defendant may resort, and it is more than likely he will find no productive remedy in that direction. Denying a defendant injured by an unauthorized appearance any relief in the action, compelling him to pay a judgment of which he knew nothing until an execution was presented for its collection, and then leaving him to the uncertain remedy of a suit against the attorney who assumed to act for him, seemed so inequitable, that, in Ellsworth v. Campbell, 31 Barb., 134, it was held that the injured party should not be confined to his remedy against the attorney, even though the latter be responsible, and that the court should, in any case of unauthorized appearance, give the injured party leave to come in and litigate the case on the merits, preserving meanwhile the lien of the judgment. In Blodget v. Conklin, 9 How., 444, it appeared that the attorney was irresponsible, and the court, to protect the defendant, permitted him to come in on swearing to merits, and allowed the judgment to stand as security. In Denton v. Noyes, supra, the relief afforded was to. stay proceedings on the judgment and allow the defendant to come in and defend the action. In these cases there were no laches on the part of the judgment creditor—here, we have judgment creditors who have slept on their rights for twenty-four years without a move on their part—the lips of the attorney who appeared are sealed in death, and Allerton, for whom the defendant became surety, has become insolvent. Under these circumstances, the terms imposed in the cases cited would not reinstate the defendant to the position he occupied when the unauthorized appearance was given. The authorities all concede that the court has power in any case to award proper relief to a defendant against an unauthorized appearance ; they differ only as to the extent of the relief which ought to be granted. None of the cases deny the power of the court to set aside the judgment altogether where that extreme course would not be inequitable to the plaintiff nor infringe on the rights of others. The defendant knowing' nothing to the contrary had the right to assume that the obligation for which he was surety had been discharged by payment, or had ceased to be enforcible by reason of the statute of limitations. The liability is to be continued, if at all, by force of the unauthorized appearance by an attorney given twenty-four years ago, and never acted upon until recently. This requires us to examine the notice of appearance critically, and to construe it more strictly against the plaintiffs than we might have done but for this unusual delay. The appearance is in an action in the Supreme ” Court, while the present litigation is in the Superior ” Court. Such an error might in many instances constitute a mere irregularity, waived by retaining the paper. Such was the construction put upon an answer entitled Supreme ” instead of “Superior ” Court (Williams v. Sholto, 4 Sandf., 641), but the plaintiff in that case did not depend upon the answer for the court’s jurisdiction to act—that had been acquired by the personal service of process—for that reason the case is distinguishable from this. In the present instance the jurisdiction of the court is made to depend exclusively on the appearance of the attorney, and if this did not authorize the Superior Court to act upon it, the judgment entered is not only without authority but void. In a jurisdictional aspect the title of the court became an essential and inseparable part of the notice, as much so apparently as the name of a bank on a check or a particular individual as drawee on a draft. The creditor could not in such a case treat the instrument at his option as drawn upon another institution or individual. If the defendant sued the estate of his attorney, he would have to overcome this objection, and the question is whether such a notice of appearance, not followed by the service of a complaint “ as demanded by the terms of the notice,” or of any other papers entitled in the “ Superior ” Court (and there is no such proof in the appeal book), would make the estate liable for the Superior Court judgment. Indeed, nothing whatever was done by the plaintiffs in recognition of the notice as an appearance in this action, and the fact that the complaint demanded by the notice was not served rather indicates that the plaintiffs’ counsel elected to treat the notice as a nullity. Section 130 of the Code, in force when the appearance was given, provides that “ a copy of the complaint need not be served with the summons. In such a case the summons must state where the complaint is or will be filed; and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and in person or by attorney demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof must, within twenty days thereafter, be served accordingly, and after such service the defendant has twenty days to answer, bnt only one copy need be served upon the same attorney.” The appeal book fails to show by any legal evidence that the complaint was ever served, so as to start the time when the twenty days within which an answer might be served commenced to run. This departure from practice would make the judgment irregular, even if the notice of appearance conferred jurisdiction, and if it did not proof of service of the summons was required before the clerk was authorized to enter judgment. Old Code, § 246 ; New Code, § 1212. It seems to us, in view of the facts, that the notice of appearance either binds the defendant in the form in which it was used, or it is not binding on him at all, and that it cannot he altered or enlarged by any act of the creditor to which he did not assent, in the absence of some authority or ratification on the part of the person to he charged. An appearance entitled in the “ N. Y. Supreme Court ” would hardly be held to confer jurisdiction on the Superior Court of Cook Co., Illinois,” nor vice versa, yet there is no substantial difference between the illustration put and the case at bar. If such a holding were sustained orderly practice would be disregarded and confusion, worse confounded, welcomed in its place.

In M. & M. Bk. v. Boyd, 3 Den., 257, it was held, that a warrant to confess judgment executed by residents of Pennsylvania, which by a fair construction of its terms contemplated a judgment in a court in that state, will not uphold a judgment entered in this state.

The warrant in that case, like the notice in this, was the sole thing upon which jurisdiction depended, and where it contemplated proceedings in one court, they were deemed unauthorized in another.

If the rights of third parties had intervened, there might be some justification in attempting to uphold the judgment leaving the defendant to whatever remedy there might be against the attorney or his estate, hut no such rights have accrued.

If there had been no laches on the part of the plaintiffs or even a reasonable delay, there might perhaps be some reason for permitting the judgment to stand and allowing the defendant to come in and defend on proving merits as was done in the three cases cited.

But the plaintiffs of their own volition waited until twenty-four years had passed, until the attorney who appeared in the action had passed to his final home, and then ex parte, and on defective proofs entered their judgment.

When informed of the status of the case by the notice of motion in February, 1890, the defendant sent one Newman to the corporation counsel, and told him that the defendant could not be the James M. Smith intended, the notice of motion was withdrawn, and a promise given that nothing further would be done without notice. No notice was given, until the defendant was informed of the judgment, and he took prompt measures to have it vacated by direct proceedings in the action. If, under such circumstances, the plaintiffs are in any manner aggrieved, by reason of the running of the statute of limitations or otherwise, it is the result of inexcusable laches on their part, which cannot be charged to the defendant. ' In view of all the facts, the long delay on the part of the plaintiffs, the changed financial condition of the principal debtor for whom the defendant was merely surety, the circumstance that the notice of appearance is in an action in the Supreme Court,” with the want of authority in the attorney to appear at all, and for the irregularities in practice specified, we think the court below was justified in vacating the judgment unconditionally. There was no absence of power ■—no abuse of discretion.

The order appealed from must, therefore, be affirmed, with costs.

Gildersleeve, J., concurred.


source: Caselaw Access Project

author: By the Court.—Gildersleeve, J.

license: Public Domain

text:
    EDWARD CORRIGAN, Respondent v. THE CONEY ISLAND JOCKEY CLUB, Appellant.

      Mandatory injunction—Sale of a race-horse with all his racing engagements, and sale of same on a statement that he was “ eligible” for certain races considered.

    The contention of the plaintiff in this case was that the colt “ Huron ” was sold uwith all his racing engagements,” among which was “The Futurity,” and hy means of such purchase of the colt, he became entitled to run the said colt in “ The Futurity ” race on August 29, 1891. At the time of the sale the colt was eligible as a competitor for “ The Futurity.” In the catalogue of sale the colt was described as “ Eligible to Coney Island Futurity, 1891.”
    Upon the verified complaint in the action the special term granted a mandatory injunction directing the defendant to permit a'certain horse known as “Huron,” the property of the plaintiff, to take part in a race called ‘1 The Futurity, ’ ’ on the 29th day of August, 1891. From the order granting the same this appeal is made.

      Held, that the sale of the colt as “ Eligible to Coney Island Futurity, 1891 ” in the description of the colt “ Huron,” when read in with the conditions of the sale, did not operate as a declaration by the vendor that the colt was sold with his racing engagements, and that representation of eligibility, can hardly he held as one of the conditions of sale, and certainly it would he unreasonable to make the further claim that this description meant a sale of the colt', with all his engagements. If, however, under the facts and circumstances, it maybe assumed that the plaintiff did purchase the colt “ Huron” with his engagements, and succeeded to all the rights of General Jackson, the vendor, in respect to the colt and “ The Futurity” race, and there was a question whether the plaintiff had or had not a right to run the said colt in the Futurity race of 1891, the execcutive committee of defendant, were the final arbiters, and that committee decided that the said colt was not eligible to start in “ The Futurity race of 1891 ” and that decision this court will not overturn. Executive committees of jockey clubs and social clubs, are supreme within themselves, when acting within the scope of their recognized legal authority, and the courts will not interfere with their decisions when rendered in accordance with their powers and rights. The statutes of this State give the defendant the right to conduct races at certain specified times, and the right to settle controversies, like the one in question, is just as firmly established, and it has the support of sound principles of equity, declared in a long line of authorities. The executive committee of the corporation-defendant were fully warranted in the decision reached and in the course pursued.
    Before Freedman, P.J., Dugro and Gildersleeve, JJ.

      Decided October 24, 1892.
    Appeal from an order of the special term, granting a mandatory injunction directing the defendant to permit a certain horse known as “ Huron ”, the property of the plaintiff, to take part in a race called “ The Futurity,” on the 29th day of August, 1891.

      Platt & Bowers, attorneys, and John M. Bowers of counsel, for appellant.

      Howe & Hummel, attorneys, and A. H. Hummel of counsel, for respondent.
   By the Court.—Gildersleeve, J.

The defendant, the Coney Island Jockey Club, is a corporation existing under the laws of the State of New York, owning what is known as the Coney Island race track, and is engaged in the business of running thoroughbred horses over its course at said track for stakes and purses.

Among the stake races, arranged by the defendant, is a race known as “ The Futurity.” The entries of contestants for this race are made before the contesting horses are born. The owner of a mare in foal enters the unborn foal of such mare, to be run at the age of two years.

In the year 1888, pursuant to the provisions and conditions of said race, one General Jackson, the owner of “ Belle Meade Stud Farm,” of Nashville, Tennessee, entered for the said race the unborn foal of a certain thoroughbred mare, known as “ Brunette,” by the thoroughbred running horse “Iroquois.” This foal was bom in the spring of 1889, and was named ££ Huron.”

The plaintiff is engaged in the business of breeding, purchasing and running horses for purses and stakes ; and, on the 21th day of April, 1890, purchased the said colt ££ Huron ” at public auction.

It is manifest that if the plaintiff has a cause of action here against the defendant, it has its basis in the rights that he acquired by the purchase of the said colt “ Huron.” Our first inquiry, therefore, is: What rights in respect of “ The Futurity ” race did the plaintiff get by his said purchase ?

It is the contention of the plaintiff that the colt Huron ” was sold with all of his racing engagements,” among which was “ The Futurity ; ” and that by means of this purchase of the colt he became entitled to run the said colt in The Futurity ” race on August 29, 1891. It must be conceded that, at the time of the sale, in April, 1890, the said colt was eligible as a competitor for ££ The Futurity.” In the catalogue of sale, he was described as <£ Eligible to Coney Island Futurity, 1891.” We do not understand that any claim is made to the contrary.

We agree with the learned court below that this announcement of the. colt’s eligibility in respect to ££ The Futurity ” race meant that he was ££ legally qualified to enter into it.” The question to be met, however, is this : Was he sold with this engagement?

This right or privilege, called an engagement, had its origin in a contract entered into between General Jackson, the owner of ££ Belle Meade Stud Farm,” and the defendant; and it cannot be enforced, except in pursuance of the terms and conditions of that contract. If, by the purchase, the plaintiff became the owner of the colt’s engagements, and succeeded to the rights of General'Jackson, he, in his efforts to enforce those rights, must submit to the rules of the defendant, under and subject to which the contract was originally made.

Rule 61 of defendant provides that when the horse is sold at public auction, the advertised conditions of the sale are sufficient evidence that he was sold with his engagements. As we read the catalogue of the sale, we do not understand the words “ Eligible to Coney Island Futurity, 1891, Brood Mare, Sweep Stakes, Westside Park, Nashville, 1891,” as constituting one of the conditions of the sale. It was a portion of the description of the colt, and a statement of the possibilities that a purchaser might realize. The conditions of the sale, as published in the catalogue, were set forth in five paragraphs, numbered respectively from first to fifth, and contain no reference whatever to the engagements of the colt “ Huron ” or any other horse. In the conditions of sale, no engagements are specified, as provided for by “ Section 61, rules of racing, regulations of the course and betting rules,” adopted by the defendant, and in force at the time the contract under consideration was entered into between General Jackson and the defendant. We fail to find any evidence in the record to support the conclusion that the colt “ Huron ” was sold with his engagements.

We cannot agree with the learned court below that the statement “Eligible to Coney Island Futurity, 1891,” in the description of the colt “ Huron,” can be read in with the conditions of the sale and operate - as a declaration by the vendor that the colt “Huron ” was sold with his engagements. We think that it cannot even be said that a representation as to the eligibility to the Futurity race was one of the conditions of sale. Could it be given an interpretation so elastic, it would certainly be unreasonable to make the further claim that this description meant a sale of the colt with his engagements.

Had it been the intention of General Jackson that the sale of the horses in question should be with their engagements, it was a condition so easily expressed that we are justified in assuming that it would have been set forth in the catalogue with perfect clearness. The engagements of a race-horse constitute an important factor with purchasers in placing an estimate upon his value, and is a feature of the business that receives important, and not slight, consideration. Again, the owner of the “ Belle Meade Stud Farm ” had good reasons for not selling his horses at public auction with their engagements. The sale was a large one. If the horses were sold with their engagements, he, General Jackson, remained liable for forfeits which would amount to a large sum, and would entail much trouble and possibly great loss. Purchasers, having bought horses eligible for certain races, could readily, by private treaty with the vendor, in accordance with the rules adopted by the defendant and other racing associations, secure all rights to engagements which the vendor had.

The letter of May 4, 1890, to the secretary of the defendant by Mr. Carter, General Jackson’s agent, declaring the colt “Huron” out of “ The Futurity ” for 1891, supports, with much force, the contention of the defendant that the colt was not sold with his engagements. If he was sold with his engagements, then the vendor, a few days after having made the sale, assumed authority over the engagement, with which he had just parted,—a very unreasonable and improbable act for the proprietor of such a large establishment as “Belle Meade Stud Farm.”

Furthermore, the letter of May 11, 1891, by Mr. Kuhl to the secretary of the defendant, and the telegram, of May 16, 1891, to the secretary of the defendant from the plaintiff, indicate very clearly that if the plaintiff did buy the colt “Huron” with his engagements, he did not know it: If credit is to be given to Mr. Carter’s affidavit, we have direct proof that “ The Futurity ” engagement of the colt Huron ” was the subject of negotiations between the vendor and plaintiff, and resulted in the plaintiff’s declining to assume the engagement.

If, however, the plaintiff did purchase the colt “ Huron ” with his engagements, and succeeded to all the rights of General Jackson in respect to the colt and the Futurity ” race, and there was a question whether the plaintiff had or had not a right to run the said colt in the “ Futurity” race of 1891, the executive committee of the defendant were the final arbiters. The executive committee of the defendant-corporation decided that the said colt Huron ” was not eligible to start in the “ Futurity ” race of 1891, and that decision this court will not overturn.

One of the rules in force when the original contract was made, knowledge of which the vendor of the said colt will be presumed to have had, is as follows: “ If any case occur, which is not, or which is alleged not to he, provided for by these rules, it shall be determined by the executive committee, in such manner as they think best and conformable with the usage of the turf.”

The executive committee of the defendant-corporation in denying the right of the plaintiff to run the said colt Huron ” in said race, so far as appears, acted in good faith and had sufficient evidence before them to sustain their conclusion.

Courts of equity rarely interfere with the exercise of discretionary powers by corporate bodies or their officers, to whom such powers are confided. Where acts requiring the exercise of judgment, science or professional skill are confided to the discretion of the officers of a corporation, the exercise of that discretion will not be lightly disturbed; nor will such officers be enjoined, except when abusing their power to the injury of others. See Walker v. Mad. Riv. Co., 8 Ohio, 38; Cooper v. Williams, 4 Ib., 253; High on Injunctions, § 763.

Executive committees of jockey clubs and social clubs are supreme within themselves, when within the scope of their recognized authority ; and where there is any evidence, and the party concerned has an opportunity to be heard, in the absence of fraud, courts should not interfere with their decisions.

When the original contract was entered into, which secured to the owner of the colt “Huron” whatever rights existed in respect to the “ Futurity ” race, the owner of the said colt, in effect, subscribed to the defendant’s rules, and they are binding upon his successor. Those rules named the tribunal to which any dispute, that might arise out of the contract, should be submitted. That tribunal was the executive committee of the defendant-corporation. They had jurisdiction of the cause of action alleged in the complaint herein, and it was the duty of the plaintiff to submit to their decision.

The statute laws of this State give the defendant the right to conduct races at certain specified times. The right to settle controversies, like the one in question, is just as firmly established, though it rests upon a different foundation. It has the support of sound principles of equity, declared in a long line of authorities.

The plaintiff, having rested quietly for over a year and after hundreds had acted upon the situation as it then existed, came forward at the last moment, and demanded an entrance for his horse. His demands could not have been granted, without doing great injustice to other competitors and to patrons of the turf generally.

We are of the opinion that the executive committee of the defendant-corporation were fully warranted in the course that they pursued.

The order appealed from should be reversed, and the injunction dissolved, with costs and disbursements to the defendant.

Freedman, P. J., and Dugro, J., concurred.


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    THE GERMAN SAVINGS BANK, in the City of New York, Appellant v. EMANUEL M. FRIEND, et al., Respondents.

      Action for interpleader and injunction.

      Held, that the plaintiff is not entitled to an interpleader, and, therefore, no right to the injunction sought existed, and the motion for an injunction was properly denied.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided October 24, 1892.
    Appeal from order of special term denying motion for an injunction. The points and facts in the case appear fully from the opinion of the court.

      Sanders, Wagner & Auerbach, attorneys, and Lewis Sanders of counsel, for appellant, argued:—
    I. Since the plaintiff offered to pay the money into court and could have been required to give security for a stay, the action should not be determined against it on the merits before a trial if. plaintiff presented a prima facie case, and showed that defendants were doing something which tended to defeat the judgment prayed for. Code, § 604.
    H. The learned judge below cites 123 N. Y., 396, as an authority for the denial of this motion. A reference to the case cited, Bassett v. Leslie, will tend to elucidate the question. Authority: “ This, under the old chancery practice, could have been called a strict bill of interpleader, and to maintain such an action it is necessary to allege and to show that two or more persons have preferred a claim against the plaintiff.” The complaint
      alleges that the defendants, Friend and House and Guttman and Podrasky, have each preferred a separate claim against plaintiff. The facts are shown by affidavit and not controverted. Authority : “ That they claim the same thing, Avhether a debt or duty.” Complaint: “ That the defendants severally claim the deposit by Guttman of $180.” Authority: “ That the plaintiff has no beneficial interest in the thing claimed, and that it cannot be determined Avithout hazard to itself, to which of the two defendants the money or thing belongs.” Complaint : “ The plaintiff is ignorant of the rights of the parties, and does not know to whom to pay it; it has no interest in the fund, and is advised by its counsel that it cannot safely pay to either of the defendants.” Authority : “ There must also be an offer to bring the money into court.” Complaint: “ And that the plaintiff upon the payment of the sum of $180 into court be hence discharged,” etc. It would seem to be somewhat difficult to draw a complaint more directly in conformity Avith the authority cited by the court below, as controlling against the plaintiff. A bill of interpleader will lie if it involve either difficult questions of law or doubtful questions of fact. Crane v. McDonald, 118 N. Y., 649.
    HI. There is no contract relation between plaintiff and defendants, Friend & House. The defendants assume the unwarranted position that- because Guttman was a depositor with plaintiff, that his alleged assignors occupy the same position. This is manifestly an error. Plaintiff has never agreed to pay Friend & House anything, and by assignment they do not become depositors. They cannot draw the money on their order but by virtue of the assignment, if at all. Guttman was still a claimant at the time of the bringing of the action. His denial on the hearing of the motion might work an estoppel against him from that date, but could not defeat the right of action already accrued. The officer of the bank, perfectly disinterested and unimpeached, alleges a .demand by Guttman subsequent to his alleged assignment to Friend & House. This court will not disbelieve his statement against the unsupported denial of a man held for theft by the police magistrate. Nor will it deny the plaintiff the right to try the merits of the case.
    IV. Interpleader by motion is merely cumulative, and cannot be had when to grant the motion would introduce another controversy. Podrasky claims the money as his against both Guttman and Friend & House, not deriving title, through either. Friend & House claim under Guttman and adversely to Podrasky, Avhile Guttman claimed against both. In such case an inter-pleader by motion will not lie. “ Here is not only a contest between the plaintiff and the widow and these two claimants themselves, which must be litigated before the rights of all the parties can be fully determined. As, for instance, if the administrator is held to have a superior right to the widow, he is still subject to a litigation between himself and the assignee to determine whether the assignee is not entitled to the sum he claims out of the proceeds of the policy. That contest could not be carried on under section 820.” N. E. Mu. Life I. Co. v. Keller, 7 Civil P. R., 109, 111. The case at bar is within the meaning of this case.
    V. This court has already determined, affirming the special term, that an action like this was well brought restraining a City Court suit. The German Savings Bank v. Habel, 45 N. Y. Superior Ct. R., 615.

      McIntyre & Settel, attorneys, and Frederick B. House of counsel, for respondents, argued :—
    I. Upon the papers :—That, as the motion was based upon the summons, complaint and affidavit, if those papers are insufficient and defective, the motion was properly denied. This is an action for an interpleader, in order to maintain which it must appear from the facts .stated and pleaded in the complaint: (a.) That two or more persons have preferred a claim against the plaintiff. (5.) That they claim the same thing, whether it be a debt or a duty, (c.) That the plaintiff has no beneficial interest in the thing claimed, (d.) That the plaintiff cannot determine, without hazard to itself, to which of the defendants the thing of right belongs, (e.) There must also be an offer to bring the money or thing into court. Dorn v. Fox, 61 N. Y., 264; B. & O. R. R. Co. v. Arthur, 90 Ib., 234; Nassau Bank v. Yandes, 44 Hun, 55 ; Atkinson v. Manks, 1 Cow., 691; N. Y. & N. H. R. R. Co. v. Schuyler, 1 Abb., 417 ; Killian v. Ebbinghaus, 100 U. S., 568. (1.) The plaintiff fails to allege in its complaint what is required by the rule laid down in these cases, “that it cannot determine, without hazard to itself, to which of the defendants the thing of right belongs,” but avers, simply, “ that it is ignorant of the rights of the parties and does not know to whom to pay it.” A plaintiff in an equity action, such as this, has no right to come into court and ask for an inter-pleader on the ground that it is ignorant of the rights of the parties, for two reasons : (a.) Because by dispelling that ignorance and acquainting itself with the facts, as in this case, by a reasonable effort, it could and should have done, the filing- of this bill of inter-pleader, and the prosecution of this action^ might have been avoided. (5.) Because the allegation “ that it is ignorant of the rights of the parties,” and the averment required, “ that it cannot determine without hazard,” etc., are not synonymous. The fact that the plaintiff is ignorant of the rights of the parties, as in the complaint alleged, is not conclusive evidence that it cannot determine, without hazard to itself, to whom the thing of right belongs. (2.) The plaintiff also fails to allege what is essential and necessary, “ that it cannot safely pay to either of the defendants.” The complaint simply avers “ that it has no interest in the fund and is advised by its counsel that it cannot safely pay to either of the defendants.” It does not even allege that it is advised and verily believes that it cannot safely pay, etc., which might have added a little strength to the allegation, although even then it would be defective, as it has been held absolutely necessary for the plaintiff to allege positively and unqualifiedly “ that it cannot safely pay to either of the defendants.” An allegation that the plaintiff is “ advised ” respecting a certain matter is not conclusive thereof, or even of the belief of the party with respect to such matter. (3.) There is an absolute failure on the part of the plaintiff to bring the money into court, or offer to do so. There are three paragraphs or subdivisions of the complaint in none of which is it alleged that the money in question has been deposited into court, or that the plaintiff holds itself ready and willing to deposit the same. This is fatal. It has been held time and again that the prayer for relief is not the complaint; all allegations material and necessary to the cause of action mustprecede it, and, after the cause of action is properly stated, the prayer or demand is made. But let us examine into this prayer for relief, even as it stands. It prays : (a.) For an injunction restraining the prosecution of the action in the City Court by the defendants Friend and House; (&.) That the respective defendants be compelled to interplead among themselves; and, (c.) That the plaintiff, upon the payment of the sum of $180 into court, he hence discharged with its reasonable costs and charges. In other words, it demands (a) the injunction and (5.) the interpleader, absolutely, and (c) its discharge, upon a certain condition, namely, upon the payment of said sum of $180 into court. So much for the papers themselves, upon which alone, we contend, the court below was justified in denying the motion herein.
    II. Upon the merits:—A separate action can no longer be maintained to restrain by injunction proceedings in another suit, in the same or another court, between the' same parties, where the relief sought in the latter suit may be obtained by a proper defence to the former one. An injunction should not be granted when there is a remedy at law, and especially not in this case, where another action is pending in which the rights of all the parties can be determined, and a judgment obtained which will be just and equitable to all the parties concerned. The courts do not favor a multiplicity of suits. Mandeville v. Reynolds, 68 N. Y., 528, 546; McHenry v. Hazard, Ib., 580-587; Savage v. Allen, 54 Ib., 458; Winfield v. Bacon, 24 Barb., 154; Auburn City Bank v. Leonard, 20 How., 193; Sheehan v. Hamilton, 2 Keyes, 304 ; Haywood v. Hood 39 Hun, 596. An independent action to obtain an injunction to restrain the proceedings in another action between the same parties cannot be maintained when a stay of proceedings, if proper, can be had by an application for such stay in the first action with the view of bringing in other parties. Haywood v. Wood, 39 Hun, 596 ; Savage v. Allen, 54 N. Y., 458, affg 59 Barb., 291; Richardson v. Davidson, 24 State Rep., 638, 5 N. Y. Supple., 617; Carpenter v. Keating, 10 Abb. N. S., 223; Livingston v. Hudson River R. R. Co., 3 C. R., 143; Bowers v. Talmade, 16 How., 325; Dederick v. Hoysradt, 4 Ib., 350, 3 C. R., 86 ; Arndt v. Williams, 16 How., 244; Bennett v. Le Roy, 14 Ib., 178; 5 Abb., 55, 156, 6 Duer, 683; Winfield v. Bacon, 24 Barb., 154; Tarrant v. Quackenbos, 10 How., 244; Hunt v. Farmers’ Loan and Trust Co., 8 Ib., 416; Grant v. Quick, 5 Sand., 612; Harman v. Remsen, 23 How., 174; Schell v. Erie Railway Co., 35 Ib., 438, 51 Barb., 368 ; Conover v. Mayor, 25 Barb., 513, 5 Abb., 393 ; Chappell v. Potter, 11 How., 365 ; Moser v. Polhamus, 4 Abb. N. S., 442 ; Sippile v. Albites, 5 Ib., 76.
    III. This motion is one which appealed to the sound discretion of the court, and its determination should not be disturbed except where there has been a flagrant abuse of that discretion, or an unquestionably unwise exercise of it. In this case there was not only not an abuse of that discretion by the lower court, but a wise, just and equitable exercise of it in favor of these defendants, and adversely to the plaintiff. The latter has had its day in court, or might have had it, in another action, but refused to avail itself of it, although the other court had jurisdiction over both the parties and the subject matter of the action. Under section 820 of the Code of Civil Procedure a defendant may, upon proof that a person not a party to the action makes a demand against him for the same debt or property, apply to the court for an interpleader. In an action in the nature of an interpleader, such as this, however, it is necessary to show what would be unnecessary under the section just quoted, namely, that the claim interposed is substantial and will probably be successful, in order to entitle plaintiff to maintain the action. Dreyfus v. Casey, 5 N. Y. Supp., 65; Nassau Bank v. Yandes, 44 Hun, 55, aff’g Nassau Bank v. Ritzinger, 5 St. Rep., 309; Risley v. Phoenix Bank, 83 N. Y., 318.
    IV. It appears to be a well settled point of law, from the whole course of authorities on this question, that the equitable remedy of an interpleader, independent of recent statutory regulations, depends upon and requires the existence of certain essential elements, and among them the following: (a) The same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded. (b) All their adverse titles or claims must be dependent or be derived from a common source, (c) The person asking the relief—the plaintiff —must not have nor claim any interest in the subject matter. (d) He must have incurred no independent liability to either of the claimants ; that is, he must stand perfectly indifferent between them, in the position merely of a stakeholder. Pom. Eg. Jur., § 1322, vol. 2, 2d ed.; The N. Y. & H. R. R. Co. v. Haws, 35 N. Y., Super. (3 J. & S.), 380, 382, 383, 384. (The case last cited seems almost conclusive of nearly all of the issues involved on this appeal, and is respectfully submitted to the careful consideration of the court.)
    Y. An action of interpleader cannot be sustained where, from the complaint itself, it appears that one of the claimants is clearly entitled to the debt or thing claimed, to the exclusion of the other. Bassett v. Leslie, 123 N. Y, 396; S. C., 33 St. Rep., 685. Citing Mohawk and Hudson R. R. Co., v. Clute, 4 Paige, 384; Dorn v. Fox, 61 N. Y, 268; Baltimore and Ohio R. R. Co., v. Arthur, 90 Ib., 234. And the court below was evidently impressed with the fact that, upon the very face of the complaint, the plaintiff was not entitled to the relief demanded, the defendants Friend & House being clearly entitled to the amount claimed to the exclusion of the defendant Podrasky, who set up a separate, independent, paramount and antagonistic title, and not derivative under that of the bailor, or which originated after the commencement of the bailment; and the learned judge cites : Bassett v. Leslie, supra, and Lund v. Seaman’s Savings Bank, supra. And Mr. Justice Yan Brunt, in delivering the opinion of the court in the case of the Nassau Bank v. Yandes, 44 Hun, 55, changed the rule laid down in Atkinson v. Hanks, 1 Cow., 703, and held that an action for an interpleader, etc., cannot he maintained' where the facts stated do not show that there is a reasonable and substantial doubt as to the right of one of the defendants to a recovery.
   By the Court.—Gildersleeve, J.

On or about the 7th day of April, 1892, the defendant Guttman deposited tlie sum of $180 -with the plaintiff, which is a savings bank organized under the laws of this State. Subsequently the defendants Friend & House made a demand upon the plaintiff for said sum so deposited, claiming that it had been assigned to them by the defendánt Guttman, and they brought a suit in the City Court to recover such sum, which suit is defended by this plaintiff on the .ground that it knows of no such assignment by Guttman to Friend & House. Plaintiff further claims that the defendant Guttman still claims the deposit as his own, and that the defendant Podrasky also has made a demand on plaintiff for it, claiming that said money was stolen from him by the defendant Guttman. Plaintiff has, therefore, brought this action to restrain the defendants Friend & House from further prosecuting their action in the City.Court, and also to compel the respective defendants to interplead among themselves, and praying that plaintiff, upon the payment into court of the said sum, be discharged from all liability, and be allowed its costs and . disbursements. Plaintiff applied to the court for an injunction restraining the defendants Friend & House -from a further prosecution of their action in the City Court, and from the order denying the motion plaintiff appeals to the general term.

From the affidavit of defendant Guttman, it appears that he admits making the assignment to Friend and House, and denies that he has made any claim to the said money since such assignment. This disposes of any apprehension that plaintiff may feel as to the position of the defendant Guttman. It also appears from the appeal papers that the charge of stealing the money made by the defendant Podrasky against the defendant Guttman was dismissed by the Grand Jury. We think, therefore, that the plaintiff’s fears of the claim of Podrasky are too shadowy and unsubstantial to be given serious consideration. Guttman’s claim is disposed of by his own affidavit, in which he swears he assigned it to Friend & House. Podrasky, as plaintiff asserts, claims by title superior to the depositor, Guttman, alleging that Guttman stole the money from him ; but the court will refuse to allow a savings bank to implead an adverse claimant of a deposit in the bank, where claimant claims by title superior to depositor, as the bank cannot dispute the title of its depositor Lund v. Seaman’s Savings Bank, 20 How., 461; unless, indeed, the third party who claims to have been despoiled of his money proceeds by process of law to enforce his rights, which Podrasky has not done. See Lund v. Seaman’s Savings Bank, 23 How., 258.

We are of the opinion that the plaintiff is not entitled to an interpleader, and, therefore, no right to the injunction sought, existed.

The motion for the injunction was properly denied. The order appealed from is affirmed, with ten dollars costs and disbursements.

Freedman, P. J., concurred.