
    William R. Gilpin, App’lt, v. The Baltimore & Ohio R. R. Co., Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 1, 1892.)
    
    1. Judgment—Foreign—Fraudulent compromise by guardian—Remedy.
    Plaintiff alleged in his complaint that, by his guardian ad litem, he recovered a judgment of $10,000 against (he defendant in Ohio; that the defendant demanded a new trial and gave a bond for $30,000; that no second trial was ever had, but that subsequently a compromise judgment of $3,800 was entered without any trial and by fraudulent procurement of the defendant, which sum the guardian converted to himself. Held, that plaintiff’s remedy was not by action in New York,but to apply to the Ohio court by motion to set aside the fraudulent judgment, and proceed to a second trial, the original judgment not being enforceable while the bond remains in force.
    
      2. Same—Grounds op demurrer.
    The complaint was also demurrable because it failed to state that the giving of the bond was fraudulent or collusive, and also because it omitted to state whether the defendant was a foreign or a domestic corporation.
    3. Appeal—Case—Decision op trial judge piñal.
    On a motion to require plaintiff to print in his appeal book an exemplified' copy of a record as a part of his complaint, the affidavit of defendant’s counsel showed that plaintiff had proffered such copy in his complaint, but failed to produce it on the trial, when defendant, with his consent, produced and used it, all of which was denied by the affidavit of plaintiff’s counsel. Held, that as the judge who tried the case granted the application, he was in the best position to know what papers were used at the trial, and his decision should not be disturbed.
    Appeal by plaintiff from judgment of the special term of this court sustaining demurrer to complaint.
    
      Thomas Nolan, for app’lt; Tracy, McFarland, Ivins, Boardman & Platt, for resp’t.
   Daly, Ch. J.

It appears from the complaint that on October 28, 1870, the plaintiff by his guardian ad litem Henry G. Helmiclc, duly appointed, recovered a judgment against the defendant for $10,000 in the court of common pleas of Franklin county, Ohio ; that the defendant demanded a second trial and, according to the laws of Ohio in such cases made and provided, gave a bond for said second trial dated November 15, 1870, and an additional bond dated November 23, 1870, for $20,000, double the amount of the judgment, as required by said laws as a condition, which bond was duly filed with the clerk of said court.

The complaint goes on to allege that no second trial was ever had as required by the laws of Ohio and provided by the said bond, but that a subsequent judgment of $3,800 was entered in said action without any trial and by way of compromise, and that this was effected by the fraudulent procurement of the defendant with one Henry Chittenden, who illegally procured himself to be appointed guardian while said Helmiek was the actual guardian, and that this was done with connivance of defendant for the purpose of effecting such settlement and compromise for $3,800, which said Chittenden illegally secured and has not paid plaintiff ; that Chittenden had no authority to settle the cause and that said settlement and subsequent judgment are wholly void, and the original judgment of $10,000 is now in full force and effect, and is still due and owing plaintiff; that plaintiff is now twenty-one years of age and upwards and was brought to this city in November, 1871, when he was about ten years of age, and had no knowledge of the proceedings taken in his case in the courts of Ohio, as aforesaid, until within the last nine months, when he instituted this action as soon as the facts came to his knowledge. And the complaint demands judgment for the amount of the judgment recovered as aforesaid with interest from October 28, 1870.

It is manifest at once-from the statement of the complaint that, if no second trial was had, as provided by the laws of Ohio upon the giving of the bond to secure the same, that the remedy of the plaintiff is to apply to the proper court in that state for such second trial. If the alleged collusive and fraudulent judgment and settlement for $3,800 stands in the way of such trial, then his remedy is to move in the court where these proceedings were had to set them aside. But while the bond given by defendant to obtain a second trial remains in force, the original judgment cannot be enforced, and forms no ground of liability against the defendant in Ohio or in this state. There is no allegation in the complaint, as pointed out by the learned judge at special term, that the giving of the bond was in any way fraudulent or collusive, and no subsequent proceedings, no matter how fraudulent, would vitiate the bond in the enforcement of which lies plaintiff’s sole remedy, if any.

The demurrer was properly sustained on the ground that the complaint does not state facts sufficient to constitute a cause of action. There was another ground of demurrer that the complaint omits to state whether the defendant is a foreign or domestic corporation, and this was also well taken. First Nat. Bank of Northampton v. Doying, 11 Civ. Pro., 61; 1 St. Rep., 617; Code, § 1775.

Appeal by plaintiff from order of the special term of this court denying his motion to set aside an order requiring him to print as part of his complaint, in his appeal book, on appeal from the j udgment on the demurrer, the record of the proceedings in Ohio which were used on the argument of said demurrer, and agreed by counsel to be deemed a part of the complaint; and that said record be filed.

Daly, Ch. J. The complaint refers to an exemplified copy of the proceedings, record and judgment of the court of common pleas of Franklin county, Ohio, to be produced and proved on the trial of this action; also to an exemplified copy of the bonds mentioned in the complaint which plaintiff proffers and will produce on the trial. On the trial of the demurrer, defendant refused to proceed unless such records were produced, but as plaintiff did not have them in court, defendant, with his consent, produced such exemplified copies, and the demurrer was argued upon them and the pleadings as served.

This appears by the affidavit of the defendant’s attorney and counsel, but it is denied in the affidavit of plaintiff’s attorney and counsel. As the learned judge who heard the demurrer granted the defendant’s application to make such record a part of the appeal book, and subsequently denied plaintiff’s motion to set aside the order made on such application, we have in effect his corroboration of defendant’s coúnsel as to what occurred- upon the trial, and as he was in the best position to know upon what papers the argument was had, we cannot find that we would be justified in reversing his decision.

The judgment and order appealed from are each affirmed, with costs.

Bischoff, J., concurs.  