
    Anna Maria Deen, Resp’t, v. William Milne, as Executor, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Specific performance of agreement not relating to land—Action
    FOR MAINTAINABLE IN COURT OF EQUITY.
    Upon the trial of an action in the supreme court, the parties thereto entered into an agreement in writing, that a former action commenced in the marine court of New York, between the same parties, in which the defendant (who was plaintiff in the supreme court action) had obtained judgment for costs should he discontinued, and the judgment entered should be vacated and cancelled. The original written stipulation having been lost, this action was brought to compel the specific' performance of the agreement to discontinue the marine court action and to vacate the judgment entered therein. Held, that although the agreement did not relate to lands, a suit for a specific performance could be maintained. That as it was necessary-first to prove the making of the agreement (it having been lost), there was no adequate remedy at law. Hicholl v. Nickoll, 8 Paige, 849, and other cases distinguished.
    2. Same—Agreement need not be in writing.
    It was immaterial whether the stipulation to discontinue and to vacate the judgment was entered into in writing or not, and whether it contained anything but a stipulation to discontinue the action.
    
      8. Same—Effect of remedy by motion in another court.
    If the plaintiff had another remedy by motion to another court (as to which quatre) to compel the defendant to thus perform his contract, it would be no answer to this action.
    •4. Same—Laches—When mere delay does not constitute.
    Mere delay, short of the statute, does not necessarily bar the action. There must be facts from which it would be inequitable to enforce the performance. Peters y. Deloplaine, 49 N. Y,, 362, distinguished.
    Appeal from a judgment of the supreme court, general term, first department, reversing a judgment entered upon the decision of the court at special term.
    
      Edward C. Perkins, for appl’t; Esek Cowen, for resp’t.
    
      
       Affirming 4 N. Y. State Rep., 129.
    
   Peckham, J.

—Upon the trial in the supreme court of the -action of Wilson v. Deen, the parties entered into an agreement in writing, that a former action commenced in the marine court of Few York, by Mrs. Deen against Wilson, in which the defendant had obtained judgment for costs, should be discontinued, and the judgment entered therein should be vacated and cancelled. This is one of the findings of fact made in this case, and although the evidence is to some extent, perhaps, conflicting, yet there is enough upon which the trial court could base its findings within any rule as to the clearness and fulness with which an agreement must be proved where a decree for a specific performance of its terms is asked for.

The original written stipulation signed by the attorneys for the plaintiff in the suit in the supreme court has been lost, but its terms were quite sufficiently proved by the production of a duplicate signed by the attorneys for the other side at the same time. It was executed on or about December 2, 1874. The judgment of the marine court has never,' in fact, been vacated of record, and the action was commenced July 22, 1884, and the relief asked for was that the marine court judgment might be vacated and set aside by reason of the agreement above mentioned (and which was set forth in the complaint and its loss alleged), and that the defendant should be required to file in the marine court the consents in his possession or under his control, to the vacating of such judgment, and that such action should be adjudged discontinued by the consent of the parties. The defendant answered setting up several defenses.

The action is simply one to compel the specific performance of the agreement to discontinue the marine court action and to vacate the Judgment entered therein.

Although the agreement does not relate to lands, yet that is no fatal obstacle to a suit for a specific performance. Pomeroy on Specific Performance of Contracts, § 10, et seq., and authorities cited in notes. The contract having been lost, the plaintiff herein could not go to the clerk of the marine court and ask to have the judgment vacated of record on her mere statement as to what such agreement was. Possibly if the stipulation were in existence, the plaintiff might, have produced it to the marine court and asked to have an entry vacating the judgment properly made. But it was lost, and in order to obtain any relief it was necessary to establish, or in other words to prove, the making of the agreement and then have it specifically enforced. There was no adequate remedy at law in the sense in which that term is used under such circumstances. In refusing the specific performance of a- contract duly proved, but of which for some reason it is held to be inequitable to decree_ specific performance, the court says upon such refusal, that it leaves the party to his remedy at law, meaning thereby to an action at law to recover his damages for the refusal of the defendant to carry out his contract.

The plaintiff here has no such remedy which is at all adequate. It is by no means clear that the plaintiff had any remedy by motion in the marine court, for she would have to establish the agreement and then ask the court to carry it out on motion. Whether the marine court has any such equitable powers is, perhaps, questionable. But the cases where the court has refused to take jurisdiction, of an original suit to set aside a sale made in another suit under a decree for such sale, have no bearing here. They were cases of original bills filed to obtain a resale of mortgaged premises under a decree in a former suit, where the sale was alleged to be irregular for some reason, or the application was on the ground of inadequacy of price, surprise, and the like; and it has been always held that such relief must be asked for in the original suit, and on motion to open the sale and have another one ordered. Such are the cases of Nicholl v. Nicholl (8 Paige, 349); American Ins. Co. v. Oakley (9 id., 259); Brown v. Frost (10 id., 243); Libby v. Rosekrans (55 Barb., 202, 219); McCotter v. Jay (30 N. Y., 80), Gould v. Mortimer (16 Abb. Pr., 448). The cases proceed upon the assumed validity of the judgments, but ask to have the sale thereunder set aside and a new sale ordered, for the reason of some alleged irregularity or as a favor.

Here the plaintiff must establish an ageement, and then-the court is asked to specifically enforce it. The fact that-the agreement when established or proved relates to the vacating of a judgment in some other court is wholly immaterial. It is the defendant who has agreed to have ifc. vacated, and the court is asked to-compel him to perform-his contract. If the plaintiff had another remedy by motion to another court to compel the defendant to thus perform his contract, it would be no answer to this_action, forín such event it would only show that the plaintiff could apply in either court and obtain relief on proving his case. In both courts, the character of the relief would be the-■same, the contract would be specifically performed, and the judgment would be vacated. It is in no sense the case of another and adequate remedy at law.

The defendant also claims there was not proof sufficiently clear and convincing in its character as to what the agreement between the parties in fact was, to authorize a decree for its specific performance. A portion of the alleged agreement was, however, proved beyond any room for cavil or dispute. There was a conflict as to whether there was, when the agreement was made, a written stipulation also entered into, and also as to what were the terms of the •oral agreement, and it is contended by the defendant that the oral agreement to discontinue (which is admitted to have been made), related only to a discontinuance of the appeal which had been taken by the plaintiff (Mrs. Been) from the marine court judgment and not to the discontinuance of the action itself.

But the conceded condition of the case then on trial in the supreme court shows overwhelmingly that the agreement must have been one to discontinue the action, for such discontinuance was the only answer that could have 'been made to the objection, which all agree was taken by the trial judge, to going on with the case while the action remained in the marine court. There is no doubt in our minds, from reading the evidence, that it was proved •clearly, and beyond any fair doubt, that there was an agreement to discontinue the action in the marine court, and that thereupon the trial in the supreme court proceeded to judgment. It is thus wholly immaterial whether the stipulation to discontinue and to vacate the judgment was ever entered into in writing or not, and equally immaterial whether or not the writing (if originally made at the trial) contained anything but a stipulation to discontinue the action. Either the oral agreement or the written stipulation to discontinue the action included, as a consequence, the vacation of the marine court judgment, whether so expressed or not. Loeb v. Willis, 100 N. Y., 231.

This is the effect of the decision in the above case. It is true there was an interlocutory judgment entered in that case, but we do not see any difference, so far as this question is concerned, between an interlocutory and a final judgment, as both are included in the meaning of such a stipulation.

The defendant also contends that there have been great loches in this case, and that hence, although the action was brought before the statute of limitations attached, yet he claims that the courts do not take jurisdiction of actions •such as this and enforce their specific performance, where by reason of the delay it would be against equity and good conscience so to do. The principle contended for is undeniable. Peters v. Delaplaine, 49 N. Y., 362.

But mere delay, short of the statute, does not necessarily bar the action. There must be facts from which it appears that changes have taken place, and circumstances have occurred, on account of which it would be inequitable to enforce the performance.

In the case cited above, almost every conceivable reason was present which went to prove that it would have been gross injustice to make such a decree therein. Nothing of the kind appears here. The plaintiff never discovered the loss of the stipulation until in May, 1883, and the action was-commenced in July, 1884. The only reason that can be suggested of any harm to the defendant’s side of the controversy on account of this lapse of time, lies in the fact of the death of the defendant’s testator who was in court as one of the parties when the agreement was made. But what has already been said is an answer to this objection. Upon the conceded facts of the case there can be no doubt, that there was an agreement to discontinue something, and from the same facts we think there can be no doubt that, the agreement was to discontinue the marine court action, which as we have seen included the vacation of the judgment in that court. No real harm can, therefore, have happened defendant owing to the death of his decedent and the consequent loss of his testimony, for the agreement to discontinue the action was proved substantially from the testimony in which all parties agreed, and from which the agreement to vacate the judgment followed as a necessary inference.

We also think the plaintiff in the supreme court action obtained full consideration for the making of the agreement to discontinue the marine court action. He had brought his action in the supreme court and found an insuperable obstacle to its trial, under the rulings of the judge, in the' existence of the marine court judgment, and in order to get-rid of such obstacle, and to enable him to go on with the-trial of his action in the supreme court, the parties agreed to discontinue the marine court action; and thereupon the trial proceeded and the plaintiff therein succeeded, and obtained a judgment which was finally reversed in this-court. Wilson v. Deen, 74 N. Y., 531. The consideration for the agreement was, therefore, ample.

We have looked through the case relating to the alleged errors in the admission of evidence, but find none to justify a reversal of the judgment. It should, therefore be affirmed with costs.

All concur, except Gray, J., not sitting.  