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Snyder agt. White.

proceeds, or have received the full amount on a sale and transfer of them, the most that can be said is, that they are liable to account for the amount of them to the cestui que trust. That would, of course, be the extent of their liability in relation to the notes, in case the defendant had paid them to the payees. It seems clear, therefore, that the allegation, that the defendant is one of the creditors of D. Lusk & Co. does not strengthen the answer, or vary its legal effect as a defence in this action; and the sum and substance of that part of the amended answer, is that the plaintiff has not sufficient title to the notes to enable him to sustain the action upon them. As before shown, a good and perfect issue was formed upon that question by the original answer.

As the foregoing views dispose of the motion, it is not necessary to consider the question of the regularity of the defendant in amending his answer after the examination of the plaintiff before the county judge. If it were necessary, I should have no hesitation in saying that the defendant had no right to amend of course, under § 172 of the Code. Issue had been joined, the action noticed for trial, and the taking of proofs commenced under $ 391. He could only amend, after that, by leave of the court. The object and meaning of that section was to enable the party to examine his adversary as a witness, for the purpose of using the evidence upon the trial of the issue; and it does not lie with the defendant, now to allege that he procured the examination to be had for any other purpose.

Under the liberal powers lodged in the court, in relation to amendments, the defendant would probably be allowed to amend his answer in this case, on application to the court, and upon terms, provided such amendment was shown to be necessary.

I do not regard the decision of the circuit court, in striking the cause from the calendar at the Wayne circuit, as at all in the way of the present application. The decision of a motion is never regarded in the light of res adjudicata, although, as a matter of orderly practice, the court will not usually allow a motion, once made and decided, to be renewed on the same facts, nor upon additional facts, without leave first obtained. But this is not that case. Various good reasons might have existed for striking the case from the calendar, which should have no

Montgomery agt. Ellis.



th motion; and this court can not now listen to representations of counsel, as to the reasons which, in fact, governed the circuit court in making its decision. It is sufficient that the motion was entirely different in its nature and object, from the present one, and the object now sought by the plaintiff could not regularly have been attained on the defendant's motion to strike from the calendar.

The motion to strike out the amended answer is granted, with ten dollars costs.


MONTGOMERY agt. Ellis.

A party who has a judgment in his favor, may, on application to the court,

under $ 174 of the Code, have redress, or be relieved, the same as though judgment was against him. He comes within the spirit and meaning of

that section, although not within its letter. A verbal agreement between the attorneys for the respective parties to a pend.

ing suit, that judgment may pass for one of the parties with a certain amount of costs, supposed by them to be equivalent to certain claims relinquished by the opposite party, with relief from the litigation, is in effect a compromise of a litigated suit ; and is final and conclusive between the parties,

no fraud being shown, even though entered into under a mistake of law. The courts have determined that the rule requiring stipulations or agreements

of this kind to be in writing, does not apply, where the party has been led to rely upon them. And especially where they have been executed by passing into a judgment.

Oneida Special Term, December 1851. Motion to modify or vacate a judgment under section 174 of the Code. This cause (which was an action under the Code for the delivery of personal property) was noticed and brought to trial in December 1850, and the plaintiff not appearing, the defendant took judgment for a dismissal of the complaint; which judgment was perfected on the fourth of January 1851, for five dollars costs, against the plaintiff. He now moves under the provisions contained in section 174 of the Code of procedure, either to modify the judgment by adding a provision that the defendant have a return of the


Montgomery agt. Elfis.

property, or damages in lieu thereof; or to open the judgment altogether, so as to allow the plaintiff to try the issues in the cause. This relief is claimed, on the ground that the error of thus taking judgment, arose from a mistake, or inadvertence of the counsel of the defendant, and an anticipated difficulty, in recovering the property, or the value thereof, against either the sheriff or the sureties, on their undertaking.

T. H. FLANDRAU, for the Motion.

H. Denio and W. O. MERRILL, Opposed. GRIDLEY, Justice.—The plaintiff resists this application on the ground that in as much as this judgment is in favor of the defendant, he is not within the purview of the section, which only authorizes the court to relieve a party against whom a judgment has been taken within one year after notice of the judgment. It may be admitted that the defendant is not within the words of the act; but he is obviously within its meaning and spirit; and as the act is remedial in its nature and object, it should receive a liberal interpretation. Besides, I am of the opinion, it was the intention of the legislature merely to declare the law as it before existed (see 2 R. S. 359, 93; Barheydt ads. Adams, 1 Wend. 101; Soulden vs. Cook, 4 Wend. 217).

2. The application is also resisted on the following state of facts, which are established by several affidavits. That before the cause was brought on for trial, a verbal agreement had been entered into between the attorney for the plaintiff and one of the attorneys of the defendant, that just such a judgment as that actually entered, should be taken at the circuit; and that the plaintiff's attorney should not appear on the trial, and that the defendant's costs should be limited to five dollars. The property in dispute was a canal boat, which the plaintiff claimed title to, as a purchaser on an execution. The defendant in his answer claimed title under a chattel mortgage, executed by a prior owner. The reply set up fraud in the mortgage, and that it conferred no title. The attorney of the plaintiff swears that he told the defendant's attorney that it would cost the plaintiff a considerable sum to prepare for trial; and though he could do so, and beat the defendant, yet as the plaintiff had got the boat, he would ad

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Montgomery agt. Ellis.

vise his client to allow the complaint to be dismissed, with five dollars costs, if the defendant would consent to take such a judgment. That the defendant's attorney agreed to the terms; and on noticing the cause for trial appended a stipulation to the notice, that on entering judgment for the defendant in the cause, the costs of the defendant should be limited to five dollars. This agreement was afterwards communicated to the plaintiff, and under the advice of his attorney he made no preparations for the trial, relying on the agreement which was actually carried out at the trial. Now, this agreement is stated in the affidavit of the defendant's attorney in much greater detail than it is given here, and is confirmed by the affidavit of another witness who was present, and heard the agreement; and by the affidavit of the plaintiff, as to his acceptance of the advice of his attorney and his reliance upon it, and omitting for that reason, to make any preparation for the trial of the cause. The counsel of the defendant claims the right to repudiate this agreement, as not being in writing, pursuant to the rules of court. To the right to repudiate there are two objections:

1. The courts have determined that the rule is not applicable to a case where a party has been led to rely on the stipulation, as the plaintiff did here, and allowed judgment to be entered against him. The ordinary doctrine of estoppel in pais would require the party who obtained the judgment by virtue of the stipulation, to abide by it afterwards (see 6 Cow. 385; 8 Cow. 119; 1 Hill, 627).

2. The agreement has been executed and has passed into a judgment and is now verified by the judgment, as well as rendered probable by the stipulation attached to the notice of trial. The defendant took such judgment, as he desired to do; and he can not vacate his own act, when it was done under an agreement on which the other party relied, and forbore to question on the trial the validity of the defendant's mortgage.

Now, regarding this agreement as valid, as I am bound to do, it was no less than a compromise of a litigated suit, executed and carried into judgment; by which the plaintiff gave up his claim of proving the defendant's mortgage fraudulent and void, and suffered a judgment of five dollars costs to pass against him;

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Temple agt. Murray and Ely.


and the defendant gave up his right to a judgment for a return of the property, or damages in lieu thereof. This disposition of the suit must be deemed final and conclusive, there being no fraud charged in relation to the agreement. The most favorable aspect of the case is, that it was an agreement entered into under a mistake of law, as to the effect of a judgment like this, in a suit of replevin. If the counsel supposed that the judgment would be such as to enable the defendant to recover against the sureties or the sheriff (without official misconduct), he was mistaken. He must have a judgment for a return, or for damages in lieu thereof, before the condition of the obligation is broken (Code 9 209, 277; 10 Wend. 333; 12 id. 120). A mistake as to the legal construction of a security is no ground, even in equity, for rescinding it. This was expressly decided in Hunt vs. Rousmaniere (1 Peters, 13 to 17; 8 Wheaton, 211, 212). This is a case to which the maxim Ignorantia juris non excusat, has been held to apply.

The motion must be denied with costs.


TEMPLE agt. MURRAY & Ely. A complaint (verified) containing an allegation that the plaintiff is now the

lawful owner and holder of said note;" and the answer alleges (under oath) that the defendant “has not sufficient knowledge or information to form a belief as to whether the plaintiff is now the lawful owner and holder of said note, therefore can not admit or deny the same," forms an issue (of a denial legally) which requires the plaintiff to prove his ownership of the note on the trial (see Genesee Mutual Ins. Co. agt. Moynihen, 5 How. Pr. R. 321 ;

and Snyder agt. White, ante page 321). Such allegation in the answer can not, therefore, be stricken out as frivolous.

At Chambers, February 1852. This was a motion to strike out the defendant's answer as “ frivolous," and for judgment under section 247 of the Code.

The complaint alleges that on the 3d day of June 1851, the defendants made their promissory note in writing, by which they promised, for value received, to pay to the order of the plaintiff one thousand dollars at the Otsego County Bank, six months from the date of the note; that the said note became due before the

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