
    Frederick W. Maas, Respondent, v. James McEntegart et al., Appellants.
    (Supreme Court, Appellate Term,
    October, 1897.)
    Court fund. — Irregularity in trying title to it — Waiver, of defect by stipulation.
    While the City Court of New York may have no jurisdiction to determine, upon a mere motion, the title to a fund belonging to a judgment debtor and paid into court as the result of a 'supplementary " proceeding taken against him, yet, where a contest arises between two claimants, to such a fund and the parties stipulate that the question of title be referred to a referee to hear the evidence and determine the facts, the party, unsuccessful upon the reference, will not, in view of the fact that the Code of Civil Procedure (§ 2443) authorizes a reference at any stage of supplementary proceedings, subsequently be heard to raise the question of the power of the court to decide the title to the fund upon the coming in of the referee’s report; and the suggestion, that the proper method would have been to appoint a receiver and have him bring an action, is not available.
    Maas v. McEntegart, 20 Misc. Rep. 676, affirmed.
    Appeal by James J. Fitzgerald, claimant of fund, from affirmance by the General Term of the City Court of an order made at Special Term conffiming, report of referee and directing distribution.
    James J. Fitzgerald, for appellants.
    William H. Klinker, for respondent.
   McAdam, J.

Prior to June 11, 1896, one William H. Hay recovered a judgment against the defendant Christopher Sullivan. On that day Sullivan had on deposit to his credit in the West Side Bank $542.60, and'the bank was by a third party order in supplementary proceedings in aid of execution issued on the Hay judgment restrained from paying out said money, and the officers of the bank were required to submit to an examination under said proceedings on June 15th.

On .June 16th James J. Fitzgerald received from Sullivan a paper signed by the latter which reads: “ Received from James J. Fitzgerald, check of P. S. Treacy, dated June 5th, 1896, for four hundred, and seventy-five dollars, which amount may be deducted from my account which is now at the West Side Bank, held under restraining order of the City Court of New York, by. said James J. Fitzgerald, his representatives or . assigns, when said restraining order is vacated or set aside.”

The May judgment referred to, upon which the restraining order was granted, was reversed on November 6, 1896.

Upon the appeal from the judgment Sullivan gave no security, and May, the judgment creditor, obtained an order on June 15, 1896, directing the West Side Bank to pay the money on deposit to his attorneys. On July 21st Sullivan procured an order which modified the one last referred to by directing the bank to pay the money to the clerk of the City Court, to be held by him until the decision of the appeal, and as security for the judgment in case of its affirmance.

The plaintiff herein obtained a judgment October 26, 1896, in the City Court against Sullivan and one McEntegart for $204.35, and instituted supplementary proceedings with the view of reaching the fund on deposit, and the clerk of the City Court was on November 7th served with an order for his examination in aid of execution.

On November 10th (four days after the reversal of the May judgment), Fitzgerald obtained an order to show cause why the third party order last referred to should not be modified so as to permit the clerk to pay the money to Fitzgerald as the owner of the fund under the instrument signed by Sullivan June 16th. On the return day of the order, November 16th, it was stipulated in writing by the plaintiff herein and the claimant “ that the question of the ownership of the said fund, and the question of the persons, being entitled to or who is entitled to the whole or any part of the same, shall be referred to William A. Crowe, Esq., counselor-at-law, to hear the evidence and determine the facts and report back to this court the evidence and the facts with all convenient speed.” An order was entered on the same day pursuant to this stipulation.

The referee proceeded with the reference and reported that Fitzgerald was the owner of $67.60 of the fund on deposit, and that the judgment debtor was on October 26, 1896, and since that time the owner of the balance of the fund. The report was confirmed December 19th, and ah order made in accordance therewith. On appeal the order was affirmed by the General Term of the City Court, July 9, 1897, and from the affirmance the present appeal is taken by Fitzgerald, the claimant of the fund.

The appellant now insists that the City Court had no jurisdiction in supplementary proceedings to try or determine the question of title to property alleged to belong to a judgment debtor when said property is claimed by a third party.

The appellant fails to distinguish between a case where there is' Want of power to act and one where the power, to act in a certain proceeding has been expressly conferred, but is erroneously exercised. Irregularities may be committed in a trial without divesting the court of power to act and to pronounce judgment.. Illegality differs from error in this: the one denotes a complete failure of the proceedings, the other something that may be waived. Brown on Juris. 285, 287.

If the appellant had urged in the court below that it could not determine a disputed claim of title to property on mere motion, but should have appointed a receiver who might have the question determined by action (Rodman v. Henry, 17 N. Y. 484; West Side Bank v. Pugsley, 47 id. 368; Teller v. Randall, 26 How. Pr. 155; Krone v. Klotz, 3 App. Div. 587), the court below would, no , doubt, have held with him. But instead of requiring this circuitous course to be adopted, the appellant preferred and, therefore, consented that the question be determined at once, finally and forever, in the proceeding then pending.

The stipulation was not one conferring jurisdiction where none existed before; it merely waived all ground of objection to that which might have otherwise been deemed an erroneous disposition of a matter properly before the court for determination.

The court had jurisdiction of the subject-matter, and had possession of the fund' under proceedings which were lawfully instituted therein. The parties were endeavoring to obtain the. fund, and agreed, as they lawfully might, upon a .mode of determining their right to it. The court had power to appoint a referee independent of the consent of the parties. Code, § 2443. The stipulation was intended to-operate as a waiver of the objection that the referee’s power must cease if a conflict of title arose, for by the agreement be was authorized to determine the conflict as well. The question presented on the appeal is, therefore, one of procedure, not of jurisdiction.

While consent cannot confer jurisdiction over the subject-matter it may to an extent regulate the manner in' which it shall be ex-N ercised. Parties .by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds.them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional rights. They may stipulate for shorter limitations of time for bringing actions for the breach of contracts than are prescribed by the statutes * * * and all such stipulations not unreasonable, not against good morals, or sound public policy, have been and will be enforced; and generally, all stipulations made by parties for the government of their conduct, or the control of their rights in the trial of a cause, or the conduct of a litigation, are enforced by the courts.” In re N. Y., L. & W. R. R. Co., 98 N. Y. at p. 453.

In Armstrong v. Percy, 5 Wend. 536, the court said: " The case of Harris v. Bradshaw, 18 Johns. 26, is a clear authority, however, for us to say, that as it is a species of action in which there might have been a reference, we will not hear the parties allege against their agreement and acts that it was not a proper case for a reference.” See, also, Baird v. Mayor, 74 N. Y. 382; Lee v. Tillotson, 24 Wend. 337.

The maxim applicable is modus et conventio vincunt legem, which the late Judge Allen liberally translated as follows: The terms and conditions of a contract, have the force of law over those who are parties to it.” Lowry v. Inman, 46 N. Y. at p. 129.

The courts do not- hold parties to the strict limits of an inquiry, and where a party by not objecting or otherwise consents! to litigate questions not technically within the issues, he will not, on appeal, be heard to' complain that the recovery was not upon the cause of action specifically alleged. Kafka v. Levensohn, 18 Misc. Rep. at p. 205; Frear v. Sweet, 118 N. Y. 454; Farmers’ L. & T. Co. v. Housatonic R. R. Co., 152 id. 251.

The only other objection urged is based on the exclusion of the clerk’s minutes showing the reversal of the May judgment by order entered November 6, 1896. This evidence was offered after the close of the reference, and on that and other grounds was objected to. It was discretionary with the referee whether he would open the reference to receive the evidence (Fielden v. Lahens, 2 Abb. Ct. App. Dec. 111; Pearson v. Fiske, 2 Hilt. 146), and it could not have altered the result if he had received it; so that the appellant was in no manner prejudiced by the ruling.

The order must be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Order affirmed, with costs.  