Deen v. Milne

15 Abb. N. Cas. 350

Opinion

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.