
    John C. Anderson, Resp’t, v. Walter S. Carr et al., Def’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    1. Judgment—Jubisdiction.
    In an action to establish the validity of a will one of the defendants consented to judgment against him, and he was perpetually enj ined from impeaching the will or making claim in contravention therewith. The case-proceeded and the court of appeals held that it would not lie and dismissed it as to the other defendants. In a proceeding against said defendant’s attorney for contempt in violating said injunction, Held,, that notwithstanding such decision of the appellate court, and the fact that the complaint did not state a case for equitable relief, the court had jurisdiction, to render the judgment by consent, and that it could not be collaterally assailed.
    2. Same—Injunction.
    If the judgment in granting an injunction went beyond the relief demanded in the complaint defendant’s remedy was by motion to amend the-judgment; but the injunction must be respected until it is set aside.
    
      Appeal from order adjudging John J. Leary, attorney for Walter S. Carr, guilty of contempt.
    
      John J. Leary, app’lt, in person; Thomas M. North and William B. Hornblower, for resp’t.
   Cullen, J.

—This action was brought to establish the validity of the will of John Anderson. The defendant Carr demurred; the defendant Watson answered. The plaintiff compromised' with the defendant Watson, and as a condition of the settlement the defendant Carr withdrew his demurrer and consented that judgment be entered against him for the relief demanded in the complaint. Judgment was thereupon entered declaring the will valid, and the defendants were perpetually enjoined from impeaching the will or making any claim in contravention thereof. Subsequently Watson, by the appellant as his attorney, brought an action in ejectment to recover certain premises devised by the-will. The appellant was adjudged guilty of contempt in continuing to prosecute the action. From such order this appeal is taken.

But two questions are raised on the appeal. The first is, that the court had no jurisdiction to render the judgment, and hence the judgment is void. In Anderson v. Anderson, 112 N. Y., 104; 20 St. Rep., 344, the court of appeals held that this action would not lie, and as to the other defendants, who resisted the suit, the action was dismissed. The court held that equity had not jurisdiction of a suit to establish a will, but that the devisee must wait, till his title is attacked. On this decision the contention is made that the judgment herein, even though entered by consent, is void.

We think that the decision of the court of appeals does not go to that extent. Doubtless had the defendants not compromised, and had carried their defense to the highest tribunal, the judgment would have been in their favor instead of against them. But in this position these litigants are not singular. The reports are full of such cases. The question is not whether the judgment was erroneous, but whether it is void. We think the judgment was in the power of the court to make.

Bills quia timet and to restrain suits at law have always been entertained by courts of equity alone. That the bill here did not state a case for equitable relief does not affect the jurisdiction of the court any more than a faulty complaint in an action at law. The court of appeals did hold that the case did not fall within the equity jurisdiction as it exists in this state, but it did not hold that the supreme court had not power to entertain such an action and determine whether it would or would not lie. There are different senses in which the word “ jurisdiction ” is employed. When “equity jurisdiction” is spoken of, there is not meant the power of the court to try the dispute in the sense that a county court cannot try an action in ejectment or a state court offenses against the federal government, but the question whether the-action in equity will lie. Bangs v. Duckinfield, 18 N. Y., 595; Fisher v. Hepburn, 48 id., 51.

When it was contended before Lord Mansfield first that the-king’s bench had no jurisdiction of the suit, and then that no ■other court had jurisdiction, he answered: “When you say that no court has jurisdiction of a controversy, what is that more than saying no action will lie.”

The plaintiff thought he .could maintain this action. He was wrong, but he had a right to be wrong. He submitted his claim to the court which had general jurisdiction in law and in equity. It is not pretended t|iat there is any other tribunal before which the plaintiff should have brought his suit. If the question was a proper one for litigation there must be some court in which the -question could be litigated,-and a judgment rendered in such a litigation, while unreversed, must, though erroneous, stand on the same footing as any other judgment not subject to collateral attack.

It is also urged that the judgment in granting an injunction went beyond the relief demanded in the complaint. If this be so, the defendant’s remedy is by motion to amend the judgment. The injunction must be respected until it is set aside.

The order appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  