Town of Mentz v. Cook

• Decision Date: 28 February 1888
• Parties: TOWN OF MENTZ v. COOK.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 504

15 N.E. 541

TOWN OF MENTZ

v.COOK.¹

Court of Appeals of New York.

February 28, 1888.

Appeal from general term, supreme court, Fifth department.

This was an action brought by the town of Mentz against Roswell Cook to restrain him from collecting, and to cancel three bonds issued by the commissioners of the town in aid of the Cayuga Northern Railroad, under the Laws of 1869 and 1871. The special term granted the relief asked, but the general term reversed the judgment, and the plaintiff appeals.

F. D. Wright, for appellant.

H. V. Howland, for respondent.

FINCH, J.

It would not be difficult to sustain the conclusion of the general term in this case if we could disregard a question of pleading not brought to their notice, but resolutely argued and pressed at our bar. The action was in equity, to compel the surrender and cancellation of three bonds of $1,000 each, which were part of a series issued by the railroad commissioners of the town of Mentz in aid of the Cayuga Northern Railroad. No such road has been constructed, and, after paying the interest coupons for a single year, the town resists, and alleges the utter illegality and invalidity of the bonds. The special term granted the relief asked for, but the general term reversed the judgment, because, conceding the invalidity of the bonds, there was a complete and adequate remedy at law. But no such defense was pleaded. On the contrary, the answer explicitly submitted the case to the disposition of the court, and assented to its authority to try the issues presented upon its equity side. The complaint, after alleging the insufficiency of the petition presented to the county judge, and the consequent invalidity of his judgment for want of jurisdiction, so that the bonds issued stood unsupported by the lawful consent of the tax-payers, concluded thus, at the end of the fourth paragraph: ‘Whereby said bonds, with their coupons, became and remain apparently a valid indebtedness against said town, and a lien or incumbrance upon all its property, and the property of all its tax-payers, real and personal; whereby, also, the collection of said bonds and coupons is liable to be enforced by the exercise of the taxing power, without any action at law for that purpose, as well as by actions at law, and in the latter event by numerous actions at law, subjecting said town to a multitude of grievous suits for such enforcement, or to proceedings for the collection of said bonds and coupons, which will not leave to the town, nor to any one aggrieved, any adequate remedy at law for resisting the enforcement of the same.’ This allegation was admitted by the answer; and the admission is conclusive, unless the averment consists wholly and fairly of a mere conclusion of law. It is something more than that. It asserts, not only that a state of facts exists out of which arises the jurisdiction of a court of equity, but also alleges a due occasion and necessity for the exercise of that jurisdiction; specifying as facts the difficulties and dangers calling for that exercise. The answer neither denies the jurisdiction, nor the propriety or necessity of its exercise; on the contrary, it concedes both, and deliberately assents to the trial of the issues in equity. It plants itself first upon the validity of the bonds as alwful obligations of the town, and next upon the doctrine of equitable estoppel growing out of the fact that one year's interest upon the bonds had been paid by the town before defendant's purchase. The answer, therefore, admitted the authority of the chosen forum to determine the issues presented, and made no effort to withdraw them from that tribunal. It appears to be settled by a very general concurrence of authority that a defendant cannot, when sued in equity, avail himself of the defense that an adequate remedy at law exists, unless he pleads that defense in his answer. Grandin v. Le Roy, 2 Paige, 509;Le Roy v. Platt, 4 Paige, 77;Truscott v. King, 6 N. Y. 147;Cox v. James, 45 N. Y. 557;Green v. Milbank, 3 Abb. N. C. 138;Pam v. Vilmar, 54 How. Pr. 235. The rule proceeds upon the basis that parties may, by their mutual assent, litigate their differences in a court of equity, where the assent of the defendant, if withheld, might induce the court to refrain from the exercise of its jurisdiction. That jurisdiction existing over the general subject, the question of...