Birdseye, J.
It is doubtless true, as contended for the defendant Comstock, that he is the officer of the court; and generally, an officer of the court who has obtained authority from it to sue, is not only authorized, but bound to proceed with his action, and is not to be restrained by injunction out of another court, or by making him a party to a new action, and obtaining an injunction against him. The proper method of restraining such an officer when engaged in the discharge of his official trust, is by application to the court whose officer he is, for instructions. (See Van Rensselaer v. Emery, 9 How. Pr. R. [160]*160138.) But that rule, instead of being a warrant for this motion, furnishes, rather, a complete answer to it. It was first violated when Comstock obtained his injunction against Winfield, instead of applying for instructions in the action in which Winfield was appointed, to direct the payment of the funds in his hands. That general rule protects Mr. Winfield as well as Mr. Com-stock. It will he observed rather by sustaining than by dissolving the present injunction.
It is also true, as a general rule, that the defendant who has an equitable defense to an action, being now authorized to interpose it by answer, is bound so to do, and shall not be permitted to bring a separate action merely for the purpose of restraining the prosecution of another action pending in the same court. (Foot v. Sprague, 12 How. Pr. R. 355.) Nor can one court, in this state, rightfully enjoin a defendant from proceeding in a suit in another court of the state, having equal power to grant the relief sought by the complaint. ( Grant v. Quick, 5 Sand. S. C. R. 612.)
It is no defense to the action of Comstock as receiver, against, Winfield as receiver, that Bacon claims a large part of the moneys which Comstock sues for. To constitute a defense, it must appear that Bacon’s claim is well founded; and Winfield does not know whether it is well founded or not. He is not bound to inquire; or, if he has satisfied himself of its correctness, to maintain it. The same remarks apply, e converso, to the action brought by Bacon; with this distinction, that Com-stock’s claim, if sustained, will take the whole of the money in the hands of Winfield, -while Bacon’s claim may be satisfied with less than the whole of it.
The ground upon which all the numerous decisions under the code have proceeded, in holding that a separate action shall not be brought merely to restrain the further prosecution of another action already pending in the same court, is plain. The court has already jurisdiction of the action and of the parties. The defendant may in his answer set forth all his equities, and may show himself entitled to any affirmative relief. And the court has received, in the code, such a grant of power as to be able [161]*161to dispose of the whole controversy, and do complete justice between the parties. It is by the test of these reasons that the question must be tried, which of these three suits shall be allowed to proceed, and which shall be suspended.
The action of Eckerson and Dimmick v. Vallmer, is obviously not the one in which the litigation is to be had. Neither Bacon nor Comstock is a party to it. And Winfield himself is not strictly a party to it, though appointed by the court its officer to carry the judgment into effect. Neither of the three parties can appropriately bring before the court the grounds of their claim. For there are no provisions for their pleading or interpleading in that action, or for bringing any issue to trials if one were joined. That action has subserved the purpose for which it was instituted. The plaintiffs have established the fraud between their debtor and John A. Vallmer, and have secured the payment of their debt. It.remains now, only to ascertain wha.t funds are in the hands of the receiver appointed in- that action. To do that, it is only necessary that he should pass his accounts. For it seems but right that the receiver, who was appointed only in that action, who was made the hand of the court, only to take charge of the property, which is subject to the order of the court therein, should be allowed, after having carried the judgment into effect as far as is possible, to settle his account and retire from the contest. He cannot be compelled to litigate without being entitled to be paid." If paid from the funds held by him; they are unnecessarily and improperly diminished. Besides, he may, in a litigation, incur expense, or perform labor, or subject himself to liability, for which he could scarcely be paid out of the fund, and yet which he ought not to be compelled to bear individually. His accounts, therefore, should be settled, and he should be discharged. Of course, as Bacon and Comstock have made claims to the fund he holds, they should be notified of the accounting, and would be entitled to a hearing, to show that his payments had not been made, or were not justified. When the balance in his hands has been duly ascertained and paid into court, one party who might be entitled to costs from the fund, is dismissed.
[162]*162Shall the suit commenced by Bacon proceed, and the others be stopped 1 He claims only a portion of the moneys remaining in court, or with the receiver. His claim may be sustained, and satisfied, and still a portion of thedhoneys remain, the subject of' future litigation. Besides: Comstock, the real party to the controversy, is not a party to that suit.
Shall the suit brought by Comstock as receiver proceed, to the exclusion of the others 1 His claim, if sustained, will take the whole of the money which remains. But Bacon is not a party to that suit. He may perhaps be brought in. But still the objection will remain that Winfield, as receiver, is unnecessarily an^f improperly retained as a defendant, and compelled to litigate. To require him to pass his accounts as receiver, upon the trial of the issue between Bacon and Comstock, upon their conflicting claims, is imposing upon him an unnecessary burden, and on the fund a useless expense. And yet, until his accounts are passed, he is not divested of his interest, and cannot be discharged from liability. That accounting, as already intimated, ought to be had as a proceeding in the suit wherein he was appointed. Such an accounting, however, cannot be-had, and the money, it would seem, cannot be paid by him into court, till the injunctions procured by Bacon and by Comstock have been removed. To effect that, he must go on and litigate both those suits; either at his own expense, or at that of the fund. During all this time, he must retain an interest in the fund, to the extent of his fees and commissions as receiver, his costs of these various suits, and the payments he had made, out of the fund decreed to John A. Vallmer, before the suits were brought against him by Bacon and Comstock. He is, therefore, not indifferent and disinterested; but must have affirmative relief, not properly attainable in either of those actions, but in another.,/ This being so, I think he is not in a situation to apply, under the last paragraph of the 122d section of the code, that either Bacon or Comstock be substituted in his place, in the action of the other, and that he be discharged from liability to either party, on paying the debt into court; ven if the case were [163]*163otherwise within the terms of that section, as to which no opinion need be expressed.
[Kings Special Term,
Free access — add to your briefcase to read the full text and ask questions with AI
Birdseye, J.
It is doubtless true, as contended for the defendant Comstock, that he is the officer of the court; and generally, an officer of the court who has obtained authority from it to sue, is not only authorized, but bound to proceed with his action, and is not to be restrained by injunction out of another court, or by making him a party to a new action, and obtaining an injunction against him. The proper method of restraining such an officer when engaged in the discharge of his official trust, is by application to the court whose officer he is, for instructions. (See Van Rensselaer v. Emery, 9 How. Pr. R. [160]*160138.) But that rule, instead of being a warrant for this motion, furnishes, rather, a complete answer to it. It was first violated when Comstock obtained his injunction against Winfield, instead of applying for instructions in the action in which Winfield was appointed, to direct the payment of the funds in his hands. That general rule protects Mr. Winfield as well as Mr. Com-stock. It will he observed rather by sustaining than by dissolving the present injunction.
It is also true, as a general rule, that the defendant who has an equitable defense to an action, being now authorized to interpose it by answer, is bound so to do, and shall not be permitted to bring a separate action merely for the purpose of restraining the prosecution of another action pending in the same court. (Foot v. Sprague, 12 How. Pr. R. 355.) Nor can one court, in this state, rightfully enjoin a defendant from proceeding in a suit in another court of the state, having equal power to grant the relief sought by the complaint. ( Grant v. Quick, 5 Sand. S. C. R. 612.)
It is no defense to the action of Comstock as receiver, against, Winfield as receiver, that Bacon claims a large part of the moneys which Comstock sues for. To constitute a defense, it must appear that Bacon’s claim is well founded; and Winfield does not know whether it is well founded or not. He is not bound to inquire; or, if he has satisfied himself of its correctness, to maintain it. The same remarks apply, e converso, to the action brought by Bacon; with this distinction, that Com-stock’s claim, if sustained, will take the whole of the money in the hands of Winfield, -while Bacon’s claim may be satisfied with less than the whole of it.
The ground upon which all the numerous decisions under the code have proceeded, in holding that a separate action shall not be brought merely to restrain the further prosecution of another action already pending in the same court, is plain. The court has already jurisdiction of the action and of the parties. The defendant may in his answer set forth all his equities, and may show himself entitled to any affirmative relief. And the court has received, in the code, such a grant of power as to be able [161]*161to dispose of the whole controversy, and do complete justice between the parties. It is by the test of these reasons that the question must be tried, which of these three suits shall be allowed to proceed, and which shall be suspended.
The action of Eckerson and Dimmick v. Vallmer, is obviously not the one in which the litigation is to be had. Neither Bacon nor Comstock is a party to it. And Winfield himself is not strictly a party to it, though appointed by the court its officer to carry the judgment into effect. Neither of the three parties can appropriately bring before the court the grounds of their claim. For there are no provisions for their pleading or interpleading in that action, or for bringing any issue to trials if one were joined. That action has subserved the purpose for which it was instituted. The plaintiffs have established the fraud between their debtor and John A. Vallmer, and have secured the payment of their debt. It.remains now, only to ascertain wha.t funds are in the hands of the receiver appointed in- that action. To do that, it is only necessary that he should pass his accounts. For it seems but right that the receiver, who was appointed only in that action, who was made the hand of the court, only to take charge of the property, which is subject to the order of the court therein, should be allowed, after having carried the judgment into effect as far as is possible, to settle his account and retire from the contest. He cannot be compelled to litigate without being entitled to be paid." If paid from the funds held by him; they are unnecessarily and improperly diminished. Besides, he may, in a litigation, incur expense, or perform labor, or subject himself to liability, for which he could scarcely be paid out of the fund, and yet which he ought not to be compelled to bear individually. His accounts, therefore, should be settled, and he should be discharged. Of course, as Bacon and Comstock have made claims to the fund he holds, they should be notified of the accounting, and would be entitled to a hearing, to show that his payments had not been made, or were not justified. When the balance in his hands has been duly ascertained and paid into court, one party who might be entitled to costs from the fund, is dismissed.
[162]*162Shall the suit commenced by Bacon proceed, and the others be stopped 1 He claims only a portion of the moneys remaining in court, or with the receiver. His claim may be sustained, and satisfied, and still a portion of thedhoneys remain, the subject of' future litigation. Besides: Comstock, the real party to the controversy, is not a party to that suit.
Shall the suit brought by Comstock as receiver proceed, to the exclusion of the others 1 His claim, if sustained, will take the whole of the money which remains. But Bacon is not a party to that suit. He may perhaps be brought in. But still the objection will remain that Winfield, as receiver, is unnecessarily an^f improperly retained as a defendant, and compelled to litigate. To require him to pass his accounts as receiver, upon the trial of the issue between Bacon and Comstock, upon their conflicting claims, is imposing upon him an unnecessary burden, and on the fund a useless expense. And yet, until his accounts are passed, he is not divested of his interest, and cannot be discharged from liability. That accounting, as already intimated, ought to be had as a proceeding in the suit wherein he was appointed. Such an accounting, however, cannot be-had, and the money, it would seem, cannot be paid by him into court, till the injunctions procured by Bacon and by Comstock have been removed. To effect that, he must go on and litigate both those suits; either at his own expense, or at that of the fund. During all this time, he must retain an interest in the fund, to the extent of his fees and commissions as receiver, his costs of these various suits, and the payments he had made, out of the fund decreed to John A. Vallmer, before the suits were brought against him by Bacon and Comstock. He is, therefore, not indifferent and disinterested; but must have affirmative relief, not properly attainable in either of those actions, but in another.,/ This being so, I think he is not in a situation to apply, under the last paragraph of the 122d section of the code, that either Bacon or Comstock be substituted in his place, in the action of the other, and that he be discharged from liability to either party, on paying the debt into court; ven if the case were [163]*163otherwise within the terms of that section, as to which no opinion need be expressed.
[Kings Special Term,
March 30, 1857.
It would seem under these circumstances, that the appropriate remedy, if not the only escape from the labyrinth, was for Mr. Winfield to bring this action, in the nature of a bill of inter-pleader, to compel the rival claimants to interplead and settle their rights between themselves. In the mean time, he can proceed to render an account of his receivership in the suit in which he was appointed, giving due notice to all the parties in interest. The moneys found in his hands will be paid into court, to abide the litigation upon the interpleader. The party who shall be found to have asserted an unfounded claim may, if the nature of the case requires it, be visited with costs. And thus an end may be reached, of what has seemed likely to prove an endless controversy.
But to that end the injunction already granted to Mr. Win-field must stand, and the parties must be required to come in and interplead in this action. Of course, the present motion to dissolve the injunction must be denied. As it was unnecessarily made against a,n officer of the court, who has necessarily and successfully opposed it, I think he is entitled to the costs of opposing it, even though those costs are imposed upon another officer of the court.
Motion denied, with $ 10 costs.
Birdseye, Justice.]