207 N.Y. 213, Crouse v. McVickar

Citation:207 N.Y. 213
Party Name:CHARLES E. CROUSE, Appellant, v. DOROTHEA E. MCVICKAR et al., Respondents.
Case Date:December 31, 1912
Court:New York Court of Appeals
 
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207 N.Y. 213

CHARLES E. CROUSE, Appellant,

v.

DOROTHEA E. MCVICKAR et al., Respondents.

New York Court of Appeal

December 31, 1912

Argued December 6, 1912.

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COUNSEL

D. Raymond Cobb for appellant. A compromise will be set aside at the suit of one who has suffered loss thereby where his adversary has been guilty of fraud inducing the compromise. (Edwards v. Baugh, 11 M. & W. 641; Wade v. Simeon, 2 C. B. Rep. 548; Cook v. Wright, 1 B. & S. 559; Greenleaf v. Barker, Cro. Eliz. 193; Jones v. Ashburnham, 4 East, 455; Longridge v. Dorville, 5 B. & S. 117; Greham v. Johnson, 17 W. R. 810; Emery v. Royal, 117 Ind. 299; Morey v. Town of Newfane, 8 Barb. 645; Adams v. C. C. & T. Co., 198 Ill. 445.) Judgments obtained by fraud and falsehood will not be sustained. (State of Michigan v. Phoenix Bank, 33 N.Y. 9;

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Richardson v. Trimble, 17 Abb. [N. C.] 210; 138 N.Y. 99; Stevens v. C. N. Bank, 144 N.Y. 50; Hackley v. Draper, 60 N.Y. 88; Leet v. Leet, 12 A.D. 11.) The proper procedure is by action, not by motion. (Hackley v. Draper, 60 N.Y. 88; Mattern v. Sage, 19 N.Y. S. R. 63; Matter of Tilden, 98 N.Y. 434.)

Charles O. Maas, Edward De Witt and William Rubin for Dorothea E. McVickar et al., respondents. The complaint is fatally defective in that it fails to disclose the facts and circumstances on which the plaintiff bases his demand for relief. (Gates v. Preston, 41 N.Y. 115; Crossman v. Davis, 79 Cal. 603; Fletcher v. Holmes, 25 Ind. 463; Twogood v. Pence, 22 Iowa, 543; Royston v. Horner, 75 Md. 559; 86 Md. 249; Baldwin v. Rice, 44 Misc. 71; Nashville, etc., Ry. Co. v. United States, 113 U.S. 266; State v. Hill, 50 Ark. 458; Bibb v. Hitchcock, 49 Ala. 474; Mayor, etc., v. Brady, 25 J. & S. 14.) The plaintiff intended, by the execution of the agreement and the entry of the judgments which he now seeks to have set aside, to and did compromise precisely the same question which he desires to litigate in this action. (Baker v. Spencer, 47 N.Y. 562.)

Morgan M. Mann and William Rubin for the New York Trust Company, respondent. The appellant compromised by a valid and binding agreement, that of December 13, 1894, the very question which he now seeks to litigate anew. (Steinway v. Steinway, 24 A.D. 104; 163 N.Y. 183; Adams v. Sage, 28 N.Y. 103; Parsons v. Hughes, 9 Paige, 591; Shank v. Shoemaker, 18 N.Y. 489; Cowen v. Rouss, 40 Misc. 105; Feeter v. Weber, 78 N.Y. 334; Stewart v. Ahrenfeld, 4 Den. 189.) The complaint is fully defective in that it fails to disclose the extraordinary circumstances and the absence of laches, which are prerequisite to any attempt to vacate a judgment. (Mayor, etc., v. Brady, 25 J. & S. 14; 115 N.Y. 599; Standard Fashion Co. v. Thompson, 137 A.D. 588;

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Le Guen v. Gouverneur, 1 Johns. Cas. 436; Bibb v. Hitchcock, 49 Ala. 474; State v. Hill, 50 Ark. 458; Mulford v. Cohen, 18 Cal. 42; Brady v. Harvath, 79 Ill.App. 18; Weeks v. Holmes, 101 Ill.App. 435; Warne v. Irwin, 153 Ind. 21.)

W. H. Van Benschoten for Lincoln Trust Company, as general guardian, respondent.

CULLEN, Ch. J.

One Crouse died on the 21st day of November, 1892, leaving a last will and testament whereby, after many legacies, he bequeathed a large residuary estate of personalty to the persons who would be entitled to take the same under the law if he had died intestate. The plaintiff and certain others, first cousins of the testator, were his next of kin, unless the defendant Dorothea Edgarita Crouse, who was then an infant aged six years, was his legitimate child. The claim was made on behalf of said infant that she was such child, and by the defendant Eula H. Potulicka that she was the widow of said testator. In this state of conflicting claims the executors of the will of the deceased brought an action in the Supreme Court against all the persons claiming any portion of the estate under the will, asking that it be determined who were entitled to the estate. The complaint in this action does not set forth in full the judgment roll in the executors' action, but it does state the object of the action and that the issue in it was as to the status of the defendant Dorothea. It alleges that the action was brought on for trial, when the parties entered into stipulation by which it was agreed that the conflicting claimants, the first cousins on one side and Dorothea on the other, should share the residuary estate equally and that judgment to that effect should be had. In accordance with the stipulation, which the guardian was authorized by the court to make on behalf of the infant, judgment was entered on the 19th day of February, 1895, which decreed that the

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residuary estate be divided as stipulated (certain deductions being made from the infant's share in favor of third parties, details of which...

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