
    Robert A. Hollister, App’lt, v. James M. Sinclair et al., Impleaded, etc., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 18, 1895.)
    
    Fobmeb adjudication—Motion.
    Where, in an action against three partners, the complaint was dismissed as to one and judgment against the other two entered by direction of the court, but afterwards the dismissal was reversed and plaintiff and such defendant agreed upon a day for the re-trial, but. before such trial, the latter moved for leave to serve a supplemental answer, setting up the judgment against the other two defendants as a bar, the decision of the general term overruling the motion is conclusive as to the effect of the entry of the judgment against the two defendants, and a court of equity will not intervene to enjoin further prosecution of the action against the other defendant.
    Appeal from a judgment, dismissing the complaint on the merits as against some of the defendants.
    • Reginald H. Arnold, for app’lt; Artemus B. Smith and Arthur L. Henthorn, for resp’ts.
   Parker, J.

By means of this suit the plaintiff sought to obtain from a court of equity a judgment restraining these defendants from the further prosecution of an action then pending in the city court of Hew York against three defendants, Messrs. Merritt, Tilton, and this plaintiff, all of whom were at one time partners under the firm name of William J. Merritt & Co. The city court action was founded upon a promissory note made by Wm. J. Merritt & Co., and Hollister interposed a separate answer, in which he alleged that he was not at the time.of the giving of the note, a member or the firm. The cause coming on for trial, the court came to the conclusion that Hollister was not liable, and therefore dismissed the complaint as to him, directing judgment as against the other two defendants. The entry of a judgment in accord with this direction of the court furnishes the only excuse which the plaintiff has been able to present for the bringing of this suit. Hollister contends that the action of the attorneys for the Sinclairs in entering a judgment against Merritt and Tilton constituted an election on their part to hold them, only,—an election which was made voluntary, and without fraud or deceit practiced upon them by any one, the legal effect of which was to deprive the Sinclairs of the right, theretofore existing, of prosecuting Hollister upon that cause of action. Whether the judgment was in fact entered by the Sinclairs’ attorneys or by Hollisters’ attorneys seems to be in dispute. By some inadvertence, the findings of fact upon that subject are in conflict, as are the pleadings and affidavits which the record contains. But we need not dwell upon this conflict, because, however that fact may have been determined, the judgment appealed from would not be affected. After the entry'of the judgment by some one, an appeal was taken by the plaintiffs Sinclair to the general term of the court of common pleas from so much of the judgment as dismissed the complaint as against defendant Hollister, resulting in its reversal. Subsequently the attorneys for Hollister and the Sinclairs agreed on a time for the re-trial of the cause, but prior to the day appointed Hollister moved the court for leave to serve a supplemental answer, setting up the judgment against Merritt and Tilton as a bar. Upon this motion the parties seem to have brought to the attention of the court all of the facts, together with the evidence, in support of each side of the dispute as to whether the Sinclairs’ or Hollister’s attorneys were responsible for the entry of the judgment. The court denied the motion, whereupon an appeal was taken by Hollister to the general term of the court of common pleas, where the order was affirmed after a full consideration, as will appear from the following extract, which we take from the opinion of the court:

“In the case before us the facts disclosed were sufficient to in"volce an exercise of the discretion of the court upon the question whether the appellant, Hollister, had waived his right to serve the proposed supplemental answer by agreeing to set the cause for trial on the issues raised by his original answer; upon the question whether, by delaying his motion for more than "two months after reversal of judgment in his favor, he was not guilty of such loches as disentitled him to the relief; upon the question whether ‘injustice would be wrought by allowing such defense.’” Sinclair v. Hollister, 41 St. Rep. 349.

The court had jurisdiction to pass upon the question whether a supplemental answer should be served, and the application .for leave to serve was necessarily addressed to the judicial discretion of the court. In the performance of its duty it determined to exercise that discretion against the applicant Hollister, and when that question had been reviewed by the only tribunal having authority to determine whether or not the. discretion of the special term of the city court was properly exercised, it was disposed of for all time. It is not the duty of a court of equity, nor has it the power, to constitute itself in effect, an appellate tribunal for the purpose of determining whether the discretion was exercised in a manner agreeable to its conscience. Waiving further comment under this head of the procedure in the city court case, we come to the motion made by the Sinclairs at a special term of the city court for an order vacating the judgment against Merritt and Tilton, which was granted. In the memorandum granting the motion the court said: “This is in furtherance of justice, works no hardship on either party, and removes the technical objection the defendant Hollister raises.” From this order Hollister took an appeal to the general term of the .court of common pleas, where it was affirmed. We do not understand Hollister to contend on this appeal that the vacation of that judgment was without authority on the part of the court. But, however that may be, the authority conferred by Code, § 724, is sufficient to justify the order made. Hollister then made a motion for a perpetual stay of any further prosecution of the action against him, which was denied; and as he asserts that the motion was, “perhaps very properly, denied by it, for the reason that such an application should more properly be made to this court,” we may pass it without further comment. Indeed, there remains nothing further to do except to express the conclusion at which we have arrived, namely, that the trial judge properly dismissed the complaint (1) because the acts, of which complaint is made, were performed by a court having jurisdiction over the subject-matter of the action, and full authority for the procedure taken ; (2) if the power of a court of equity to grant the relief asked for could be assumed, its exercise in this case would not be in harmony with equitable procedure.

The judgment should be affirmed, with costs.

All concur.  