Duffy v. Duffy

24 Jones & S. 593, 21 N.Y. St. Rep. 473, 56 N.Y. Sup. Ct. 593

Opinion

The Court (Freedman, J., writing)

held “ that under Coit v. Campbell, 82 N. Y. 509, the motion was properly denied; but that the late case of Holsman v. St. John, 90 N. Y. 461 (which was decided without noticing Coit v. Campbell) was in apparent if not in real conflict with Coit v. Campbell; that the late case should be followed unless some distinction could be drawn between them; that the only distinction the court was able to draw is, that the first case was in equity and the latter an action-at-law; that it might still be a debatable question, notwithstanding Greene v. Martine, 21 Hun 136, affirmed, 84 N. Y. 648, whether a distinction between an action in equity and one at law should be maintained ; and that in view of the circumstances and the great importance of the question, it was in the interest of all parties to affirm the order so that the question involved might be squarely presented to the court of appeals, and put at rest by that court.”

The order was affirmed.

Sedgwick, Ch. J., and Ingraham, J., concurred.