
    Eva Roxana Anderson, Respondent, v. Jane Ann Smitley, Individually and as Sole Heir at Law and Next of Kin of John Elmer Ellis, Deceased, etc., and Others, Appellants. Eva Roxana Anderson, Respondent, v. Jane Ann Smitley, Individually and as Sole Heir at Law and Next of Kin of John Elmer Ellis, Deceased, etc., and Others, Appellants, Impleaded with John J. Lordon, Defendant.
    (No. 2.)
    First Department,
    December 2, 1910.
    Contempt — violating injunctive provision in decree.
    Where the final decree in an action to set aside the probate of a will enjoins all parties from “maintaining any action * * * based upon a claim”- that the paper was not the will of the decedent, a party so enjoined who begins a now action which is in effect based upon a claim that the instrument is not the decedent's will is guilty of contempt.
    Laughlin, J., dissented, with opinion.
    Appeal by the defendants, Jane Ann Smitley, individually, etc., and others, from an order of the Supreme Court made at the New York Special Term aiid entered in the office of the clerk of the county of New York on the 24th day of June, 1910, denying the said defendants’ motion to punish the plaintiff for .contempt of a' judgment in the first above-entitled action.
    
      Edward Winslow Paige, for the appellants.
    
      Francis Á. McGloskey, for the respondent.
   Scott, J.:

We have held in Anderson v. Smitley, No. 1 (141 App. Div. 421), decided herewith, that the injunction contained in the final decree entered on October 13, 1903, in the action then pending, is an effectual bar to the prosecution of the action commenced by plaintiff in May, 1908. It is but a single step further and a necessary corollary to hold that the bringing of the second action is a violation of the injunctive clause of the previous decree, and a contempt of court. The appellants’ motion to punish plaintiff as for a contempt must, therefore, be granted, the proceedings on the part of the plaintiff in the second-action stayed, and plaintiff specifically restrained from further prosecuting it.

The Order should be reversed, with ten dollars costs and disbursements, and motion granted as above indicated.

Ingraham, P. J.; McLaughlin and Dowling, JJ., concurred ; Laughlin, J., dissented.

Laughlin, J.

(dissenting)*

The j udgment under which it is claimed that the plaintiff is guilty of contempt was entered in the action which she brought pursuant to the provisions of section 2653a of the Code of Civil Procedure to have the instrument which had been probated as the last will and testament of the decedent, John Elmer Ellis, set aside. The action liad been settled by a substantial payment of money to her by those interested in sustaining the will, and the judgment was entered after such settlement on her stipulation and without a trial. As required by section 2653a, the judgment contained, among other things, a provision that all parties to the action “ be enjoined from bringing or maintaining any action dr proceeding * * * based upon a claim that such writing is not the last will or codicil, or either, of the testator.” After the settlement of the action, and the entry of the judgment therein, the plaintiff, according to the allegations of her complaint, discovered that certain false and fraudulent representations of .a material nature had been made to her by' which she was induced to settle the action. She thereupon brought0 this action, to recover -the damages which she sustained by relying upon such false and fraudulent representations. Her action is based on the fraud, and not on any claim that the writing thus adjudicated to be the last will and testament is not such last will and testament. It became essential to the plaintiff, in showing that she had sustained substantial; damages, to allege in substance that but. for the false and fraudulent representations she would not have settled the action, and that she could have shown on a trial thereof that the will was not the last will and- testament - of the decedent, and that she would have thereby come into possession of more property than she received • on -the settlement. She does not seek in this' action either to have it adjudged that the will "-is not. the last will and testament of the deceased, or that it is invalid; nor does she as heir or otherwise assert any claim, to any property of the decedent on the theory that the will was invalid, or on any other. theory. She does not demand a judgment that will affect the right of any person interested in the estate of the deceased under his will or otherwise. The decision about to be .made on this appeal limits and confines a party .to such an action who is fraudulently induced to compromise his rights or claims to rescinding the settlement, which involves a restoration of property or funds received.under it, and for that reason would in many instances not be an adequate remedy. I know of no exception to- the rule that with respect to executed-transactions a person induced by fraud to execute a contract or part with property has the right, on’ discovering the fraud, of election either to rescind or restore the consideration received, or to. affirm and sue for the damages he has sustained over' and above what he has received. It may be that it would be competent for the Legislature, as to. transactions in futuro, to take away the common-law right of action for damages for fraud in such cases; but I see nothing in the phraseology of the statute' showing a legislative intent to that effect. - The entire purpose and object of the-Legislature in directing that a final judgment in such action should contain an injunction is, I think, satisfied by precluding any party to the action from seeking to establish by application ■ to the court by action or proceeding, or in defense of an action or proceeding instituted by another, any right of property inconsistent with the validity of the will.

I, therefore, dissent and vote for- affirmance.

. Order reversed, with ten dollars costs and- disbursements, and. motion granted to extent indicated in opinion. Settle order on notice.  