Dickinson v. Springer
| Decision Date | 20 July 1927 |
| Citation | 158 N.E. 74,246 N.Y. 203 |
| Parties | DICKINSON et al. v. SPRINGER et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Frederick S. Dickinson and another against John Springer and others. Judgment of the Special Term dismissing the complaint was affirmed by the Appellate Division (218 App. Div. 831, 219 N. Y. S. 799), and plaintiffs appeal.
Reversed on condition.
Appeal from Supreme Court, Appellate Division, First Department.
Edward F. Clark, Leonard J. Reynolds, and Oscar B. Lowman, all of New York City, for appellants.
George W. Bristol and John S. Wise, Jr., both of New York City, for respondents.
The plaintiff brought this action in April, 1922, for the purpose of obtaining an injunction against these defendants, prohibiting them from selling or disposing of certain capital stock of the plaintiff Dickinson Cord Tire Corporation, which, according to the allegations of the complaint, belonged to the plaintiff Frederick S. Dickinson, and, without authority from him, came into the possession and control of the defendant John Springer. The action was commenced by the service of the summons and complaint and an order to show cause, together with supporting affidavits and injunction bonds, upon the defendants Steelman and Birkins who are alleged to be the brokers of the defendant Springer, and upon the defendant George Bristol, a lawyer retained by him. These defendants answered the complaint. The defendant Springer was not served at that time. It appears that the order to show cause, served upon the defendants Steelman & Birkins and Bristol, contained a temporary injunction or stay which was vacated upon the return of the order to show cause. In September, 1922, the plaintiffs began a new action in New Jersey against the defendant Springer alone. The complaint asked for substantially the same relief. In that action a temporary injunction was obtained which restrained Springer from disposing of the stock in his possession until the trial of the action. No bond was given or required upon the granting of that injunction.
The action in New Jersey resulted after trial in a judgment in favor of the defendant Springer on the merits. After his successful defense in the New Jersey action, Springer appeared voluntarily in the New York action and pleaded as an affirmative defense the prior adjudication in New Jersey. In his answer he also set up a counterclaim for $250,000. In this counterclaim Springer alleged that the plaintiff had wrongfully prevented him from disposing of the stock owned by him, while there was a market for such stock; that the actions in New York and New Jersey were brought maliciously and based upon false allegations; that the temporary injunction in the order to show cause in the New York action and the injunction pendente lite in the New Jersey action were procured by means of false affidavits; and that, in the interim between the time when the injunction in the New York action was vacated and the injunction pendente lite granted in the New Jersey action, the plaintiffs maliciously circulated false stories among possible prospective purchasers of Springer's stock to the effect that the stock was stolen.
The plaintiffs thereupon made a motion to strike out the defense of prior adjudication on the ground that it was insufficient on its face, and to strike out the counterclaim on the ground that the counterclaim is not one which may be properly interposed in this action. The motion was denied, and the plaintiffs did not appeal to the Appellate Division from the order of denial.
When the case came to trial, records in the New Jersey action were offered in evidence. The justice at Special Term held that these records showed a prior adjudication in New Jersey which constituted a bar to the prosecution of the same cause of action in New York, and directed judgment in favor of the defendants, dismissing the complaint. Judgments were entered separately in favor of the separate defendants. The judgment in favor of the defendant Springer orders and adjudges that the complaint should be dismissed and that the issues raised by the counterclaim and the reply thereto should be tried before a jury. The judgments in favor of the other defendants who had pleaded no counterclaim finally determined the litigation as to them. The Appellate Division has unanimously affirmed the judgments. Separatejudgments of affirmance were again entered, and the plaintiffs appeal from these final judgments by permission of this court.
[1] The only question which we may review upon this appeal is whether the records in the action in New Jersey which were introduced at the trial show a binding adjudication of all the issues in this case. The plaintiffs have sought by their notice of appeal to this court to bring up for review the order of the Special Term denying their motion to strike out from the answer of the defendant Springer the defense of res adjudicata and the counterclaim. No appeal was taken to the Appellate Division from this order, and, upon the appeals from the judgments, it was not brought to that court or review by proper notice in accordance with section 580 of the Civil Practice Act. The order denying the motion striking out the defense of res adjudicata did not ‘necessarily affect the judgment’ dismissing the complaint, for the plaintiffs might still urge upon the trial that the proofs did not establish a defense. Ansorge v. Kane, 244 N. Y. 395, 155 N. E. 683.
[2] No judgment has finally determined the issues raised by the counterclaim and the reply, and the direction for a trial is concedly only interlocutory. No appeal lies from the decision of the Appellate Division affirming that direction, without permission of the Appellate Division. Indeed, no appeal has been attempted in regard to that branch of the decision. Even if there should be doubt as to whether Springer may set up such a counterclaim in this action, we may not upon this appeal resolve that doubt either way.
The complaint in the action is somewhat voluminous. Its allegations may be summarized briefly as follows: The defendant Springer has in his possession and is endeavoring to sell certain stock of the Dickinson Cord Tire Corporation. Though the stock stands in Springer's name, it in fact is the property of the plaintiff Frederick S. Dickinson, and was never delivered to Springer. The stock was placed in Springer's name upon his express agreement that it would not be offered for sale until the treasury stock of the corporation had been sold and the proceeds paid into the corporation treasury as capital. In addition to other relief an injunction is asked against a sale or offer for sale by Springer or his agents of this stock, on the ground that the stock does not belong to Springer and that in any event it may not be offered for sale or sold until the treasury stock is sold.
[3] The allegations of the complaint or bill in the New Jersey action are somewhat different, but the relief asked is likewise an...
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Lennon v. Cohen
...could not have been litigated in the action resulting in the New York judgment, because that issue had not then arisen. Dickinson v. Springer, 246 N. Y. 203, 158 N. E. 74;Hunt v. Snyder, 261 Pa. 257, 104 A. 603, certiorari denied 248 U. S. 566, 39 S. Ct. 9, 63 L. Ed. 424. See Blodgett v. Si......
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Meredith v. Meredith
... ... Clothing Co. v ... Walker, 279 S.W. 1059, 1061; C. H. Albers Commission ... Co. v. Spencer, 236 Mo. 608, 139 S.W. 321, 326; ... Dickinson v. Springer, 246 N.Y. 203, 158 N.E. 74, ... 77; 32 C. J. 435, sec. 746. (2) The circuit court has ... jurisdiction to terminate liability on an ... ...
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House v. Schwartz
...10 are entitled to the following relief, granted in this equity action on the basis of conditions at the time of trial (Dickinson v. Springer, 246 N.Y. 203, 158 N.E. 74): I. Judgment directing the individual defendants, officers of Local 10, to pay the sums hereinafter indicated constitutin......
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Lennon v. Cohen
... ... action resulting in the New York judgment, because that issue ... had not then arisen. Dickinson v. Springer, 246 N.Y ... 203. Hunt v. Snyder, 261 Penn. St. 257; certiorari denied, in ... Snyder v. Snyder, 248 U.S. 566. See Blodgett v ... ...