Jex v. Jacob

Larremore, J.

The plaintiff leased to defendants certain premises situated on the corner of Broadway and Eorty-second street, in the city of New York, for the term of ten years from February 1, 1871, at the annual rent of $13,230, payable quarterly. On November 8, 1877, plaintiff commenced an action in the supreme court for $6,615, being rent of said premises for two quarters, ending respectively August 1 and November 1, 1877. At the date of said action there was also due a balance of rent for the quarter ending May 1, 1877, amounting to $152.82, which was not included in the action above mentioned, but which was withheld, as is alleged, as an offset for damages claimed by defendants for leakage of the roof of said premises.

On November 14, 1877, plaintiff commenced an action in this court for the recovery of such balance, in which judgment' was rendered by default December 19, 1877, and said judgment was paid and satisfied December 21, 1877. Subsequently the defendants served an amended and supplemental answer to the complaint in the action in the supreme court, and set up (among other defenses) as a plea in bar the recovery of the judgment of December 19, 1877. A motion was then made in plaintiff’s behalf to strike out said plea as frivolous and irrelevant, which motion was denied. A demurrer was then interposed to said defense, which was sustained, but the same was overruled on appeal and judgment ordered thereon in defendants’ favor, with liberty to plaintiff to withdraw said demurrer, *296and without prejudice to an application to this court to vacate the judgment of December 19, 1877. Pending the appeal upon the demurrer a stipulation in writing, dated June 20,1878, was entered into by the respective attorneys in the action in the supreme court, whereby all defenses and counter-claims by the defendants were withdrawn, except the plea in bar, upon which the parties agreed to stand or fall as a final adjudication of them differences. This stipulation was drawn by the plaintiff’s attorney, and appears to have been regarded as a finality as to the matters then in dispute. After the decision was rendered overruling the demurrer, plaintiff moved in this court to vacate its judgment of December 19, 1877, which motion was denied, and from the order entered thereon this appeal is taken.

I assume, after careful examination of the papers submitted, that the appellant does not rely for relief upon the statute, the limitations of which as to time would preclude his application.

He therefore appeals to the inherent equitable jurisdiction of the court to control and correct its judgments in furtherance of justice.

But equity, as well as law, has its limits, and, while each case presented stands upon its own merits, precedents must not be disregarded or strained to subvert the principles upon which its successful administration depends. I have searched in vain to find in these proceedings the evidence of fraud, inevitable accident or mistake as the basis of plaintiff’s remedy (Story’s Eq. Juris. § 1573-1575). The opposing affidavits meet all the averments urged, and show conclusively that plaintiff could not or ought not to have been misled in the premises, and a mistake of law will not avail him. He knew of the entry of the judgment which he now seeks to avoid, and for nearly two years acquiesced in its validity without any attempt to set it aside. He recognized its existence by his motion and demurrer in the supreme court, and now seeks to take advantage of his own neglect.

But, even if so disposed, this court cannot aid him. He is estopped by his stipulation of June 20, 1878, whereby both parties placed the ultimate decision of their rights upon the *297plea in bar. If he succeeds in defeating that plea, his right to a judgment absolute in his first action is unquestioned, for all defenses to it, save this plea, are withdrawn. If he fails therein he must still seek relief from the consequences of his own deliberate act in the action in which such stipulation was made.

The order denying the motion to vacate the judgment of December 19, 1877, should be affirmed, with costs.

Van Brunt, J.

I am of opinion that the court has no power to set aside, upon motion, any judgment after the expiration of one year after notice thereof, except for error in fact not arising upon the trial, in which case such motion may be made within two yearn after the filing of the judgment roll.

The application in this case, not being based upon any error in fact not arising upon the trial, does not come within the last limitation, and must necessarily be embraced within the first.

It is claimed by the appellant that this is an application to the general equity powers of the court. I am unaware of any practice which authorizes such equity powers to be exercised upon a motion.

If equitable interference is sought, it must be by bill, as the court cannot acquire jurisdiction except by bill, unless in the cases provided for by the statute.

It is, therefore, not necessary to discuss the equitable bearings of the plaintiffs application, as he is not in a court of equity, but in a court of law.

When, by a proper bill filed, he seeks the equitable interference of the court, it will become our duty to determine whether in equity he is entitled to any relief.

The order appealed from should be affirmed, with, costs.

Order affirmed, with costs.