
    DEEN v. MILNE.
    
      N. Y. Supreme Court, First Department, General Term ;
    
    March, 1885.
    Jurisdiction ; equitable ; action to establish lost stipulation for discontinuance of action in another court.
    The supreme court has jurisdiction to entertain an action 'to establish the existence of a lost stipulation providing for the discontinuance of an action in the marine court of the city of New York, particularly where the stipulation was made in another action in the supreme court.
    
      It is error to dismiss the complaint upon the ground that the plaintiff has an adequate remedy at law by motion in the marine court, as these remedies are concurrent.
    Appeal by the plaintiff from a judgment entered on a dismissal of the complaint at the trial.
    Ann Maria Been brought this action against William Milne, as executor of the last will and testament of William M. Wilson, deceased, to establish the existence of a lost stipulation alleged to have been made in an action in the supreme court, providing for the discontinuance of two actions in the marine court of the city of New York, in one of which a verdict and judgment had been rendered, and an appeal was pending ; and the complaint also asked to have said judgment canceled in accordance with the terms of the stipulation ; and for the enforcement of a verbal stipulation in open court to the same effect.
    At the commencement of the trial of the former action in this court, the judge held that it could not proceed, and that the complaint must be dismissed, if the said judgment of the marine court remained in full force, whereupon the stipulation in question was made, and the trial proceeded.
    The complaint herein was dismissed at the trial upon the ground that the plaintiff had an adequate remedy at law by motion in the marine court.
    Plaintiff appealed.
    
      Joseph A. Shoudy {Jas. K. Hill, Wing & Shoudy, attorneys), for the plaintiff, appellant.
    I. Plaintiff was entitled to equitable relief because' of the loss of the written consents to discontinuance, which were essential to plaintiff’s rights, and must be established by resort to a court of equity {Story's Eq. J. §§ 81-90 ; Willard's Eq. J. 52 ; Jex v. Jacob, 9 Daly, 297). The city court of New York possesses no equity power (McMahon v. Rauhr, 3 Daly, 116; Code Civ. Pro. 
      § 315). This court will enforce a parol stipulation made in open court, although it has reference to proceedings in another cause and in another court (Jewett v. Albany Bank, Clarke's Ch. 253), bub such a stipulation can only be enforced by action (Phillips v. Wicks, 38 Super. Ct. [J. & S.] 74).
    II. Plaintiff’s remedy by motion is no answer. The remedy by action is more appropriate (McLean v. Tompkins, 18 Abb. Pr. 28). In order to defeat a bill in equity where there is a plain right established, it must be shown that there is a clear and perfectly adequate remedy at law (American Insurance Company v. Fiske, 1 Paige, 890 ; Watson v. Sutherland, 5 Wall. 75 ; Williams v. Kiernan, 25 Hun, 362, and cases cited). By adequate remedy at law is meant a common law action, and not a mere application to the discretion of the court by motion (Hill v. Hermans, 59 N. Y. 396 ; Hackley v. Draper, 60 Id. 88).
    III. The objection that plaintiff has an adequate remedy at law is not set up as a defense in the answer nor even suggested therein. It was therefore waived (Le Roy v. Platt, 4 Paige, 77 ; Cumming v. Mayor, &c. of Brooklyn, 11 Id. 596). This rule has not been abolished by the Code (Truscott v. King, 6 N. Y. 165 ; Cox v. James, 45 Id. 562).
    
      John C. Gray and E. C. Perkins {Gray & Davenport, attorneys), for the defendant, respondent.
    I. The objection that plaintiff was not entitled to relief in equity was properly raised by motion to dismiss, and was not waived by failure to demur or raise the question by answer {Code Civ. Pro. § 499 ; Tooker v. Arnoux, 76 N. Y. 397; De Bussierre v. Holladay, 4 Abb. N. C. 117).
    II. Plaintiff has an adequate remedy at law by application to the city court. The power to vacate judgments is inherent in courts of record, and not limited (Barry v. Mut. Life Ins. Co., 53 N. Y. 539 ; Dietz v. Parish, 43 Super. Ct. [J. & S.] 87; Dinsmore v. Adams, 48 How. Pr. 274). The existence of a remedy by motion is sufficient to deter a court of equity from assuming jurisdiction (Gould v. Mortimer, 16 Abb. Pr. 449 ; Brown v. Frost, 10 Paige, 243 ; Nicholl v. Nicholl, 8 Paige, 350 ; McCotter v. Jay, 30 N. Y. 80; Libby v. Rosekrans, 55 Barb. 219). If there is a remedy at law, a court of equity will not entertain the suit (Walmsley v. Child, 1 Ves. Sr. 341, 345 ; Whitfield v. Fausset, 1 Ves. Sr. 392; East India Co. v. Boddam, 9 Ves. Jr. 466; Mossop v. Eadon, 16 Ves. Jr. 430, 434). Equity had jurisdiction in Hackley v. Draper, 60 N. Y. 88, and Hill v. Hermann, 59 N. Y. 396, relied upon by appellant, on the ground of fraud. See, also, Mayne v. Griswold, 3 Sandf. 463, 479; Lord Chesterfield v. Janssen, 2 Ves. Sr. 155.
    III. Even if there is no remedy at law, the complaint does not state facts sufficient to entitle the plaintiff to equitable relief. It does not appear when the stipulation was lost. The action was not brought for nine years and seven months after the stipulation was made, and if, as may perfectly well, for all that appears, be the case, the stipulation was in plaintiff’s possession for nine years, or even for a much shorter period before she lost it, without her taking any steps to enforce it, a court of equity would hardly grant her relief. She does not show that she is free from laches. The stipulation was void. An attorney has no implied authority to consent to the vacating of a judgment in favor of his client, except upon payment (Quinn v. Lloyd, 7 Robt. 538; Phillips v.Wicks, 38 Super. Ct. [J. & S.] 75).
   Per Curiam.

The object of this action was to establish the existence of a lost stipulation providing for the discontinuance of two actions in the marine court of the.city of New York, in which a verdict and a judgment had been rendered, and for the cancellation of the judgments in accordance with the terms of the stipulation.

It is not necessary to go into details about the facts in the case. It was insisted that the object in view in .commencing this action could be accomplished by a motion in the marine court and that this court could not entertain an action of this character. The learned justice in the court below seems to have entertained this view. We think however, it was erroneous.

We entertain no doubt that the remedies are concurrent, and particularly in a case where the stipulation is made in another action, and in another court, which were the attending circumstances here, the stipulation as to- the case in the marine court having been made in this court during the trial of an action herein. In- ' deed, if there be any doubt entertained, springing out of the facts revealed herein, it is whether the marine court, in consequence of the manner in which the stipulation was agreed upon and executed, would entertain it on motion for the purpose of accomplishing the object designed in making it.

Judgment reversed and new trial ordered, with costs to abide the event. 
      
       Brady and Daniels, JJ.
     