said mortgages, and the other to foreclose the second and third of the mortgages hereinbefore referred to. To these actions the above-named plaintiffs, "Margaret Archer, individually and as administratrix with. the will annexed of the estate of Allison M. Archer, deceased, William Watson Archer, Edith K. Archer, Laura Louise Archer," as well as other persons, were named as defendants. Such proceedings were had in said actions that on October 22, 1910, judgments of foreclosure and sale were entered in favor of the plaintiff therein and against the defendants, who are the plaintiffs here. An appeal was taken to this court from said judgments. A stipulation was entered into in the second action that the decision therein should abide the result of the appeal taken in action No. 1, and that appeal was not argued. After argument of the appeal in action No. 1, this court, on November 10, 1911, handed down its decision, upon which, on March 6, 1912, judgment was entered, which modified the judgment appealed from by excepting from the lien of the mortgage, and the direction for a sale under the judgment, certain parcels of land therein described, upon the ground that they formed no part of the land of which Michael A. Archer died seised, and as thus modified said judgment was affirmed. Archer v. Archer, 147 App. Div. 44, 131 N. Y. Supp. 661. On July 9, 1912, the premises covered by said mortgage and directed to be sold by the judgment in action No. 1, as modified, were offered for sale by the referee named therein, and upon such sale were struck down to defendant George Archer for the sum of $15,575; and on September 7, 1912, said premises were conveyed to him, and he now claims to be the owner thereof. Upon such sale a surplus of about $3,000 arose, which defendant Fannie F. Archer seems to have credited upon the amount due under the judgment in action No. 2, leaving a balance due under said judgment in excess of $18,000. The court at Special Term has also found that on December 15, 1900, the sheriff of Rockland county, having sold to Clarissa A. Archer, under execution issued upon a judgment recovered by Adolph Goldstein against Allison M. Archer, all his right, title, and interest in the real estate of which Michael A. Archer died seised and possessed, subject to the lien of said three mortgages, conveyed the same to her, and on December 17, 1900, she conveyed the same to Charles D. Archer and George Archer. It has also found that, in so purchasing and conveying such estate in remainder, Clarissa A. Archer "acted as the agent or dummy of said George and Charles Archer, who were the real parties in interest throughout the transaction, wholly for their own individual gain or profit." When Charles D. Archer died, he left a last will and testament, which was duly admitted to probate, by which he gave, devised, and bequeathed to defendant George Archer all his property, both real and personal. By its decision in this action and the judgment entered thereon, the learned court at Special Term has, first, set aside both the sale to George Archer on July 9, 1912, under the judgment of foreclosure hereinbe viving executor and trustee of the will of Michael A. Archer, his relation to the subject-matter of said action and to the plaintiffs in this action, who were beneficiaries under said will, was of such a character that he was not permitted to become the purchaser of said premises for his own personal gain and profit and to the possible detriment of the above-named plaintiffs; second, it has held that in the purchase of the three mortgages hereinbefore referred to by Fannie F. Archer she was "acting simply as a dummy, agent, or go-between" of her husband, defendant George Archer, who was the real party in interest, and that such purchase and the subsequent foreclosure of said mortgages, and the subsequent purchase of said property by George Archer, was in violation of his duties as trustee and executor, as aforesaid, and in violation of the rights of the above-named plaintiffs and to their great damage; third, that the purchase by Charles D. Archer and George Archer from Clarissa A. Archer of the estate in remainder of Allison A. Archer under the execution sale against him, was likewise in violation of their duties as executors and trustees; and, finally, that defendant George Archer must hold in trust for said plaintiffs all the property, right, title, and interest covered by the three mortgages above referred to, and the sheriff's deed, subject to the reimbursement of defendant George Archer for the moneys actually paid out by him in the purchase of said three mortgages, the sheriff's deed and interest thereon, and account to them therefor. From such judgment the defendants bring this appeal. [1] In so far as said judgment affects the validity of the assignments of said three bonds and mortgages to Fannie F. Archer, and the judgments entered for the foreclosure thereof, it is clearly erroneous. Such judgments create an estoppel. The complaints in said actions allege that said assignments were duly made, and that the entire amount secured to be paid by said bonds and mortgages was due to the plaintiff therein. These allegations were met by a denial on the part of the present plaintiffs of any knowledge or information sufficient to form a belief respecting the same. The findings in said actions are to the effect that the bonds and mortgages were duly assigned to Fannie F. Archer, and that she then was and since has been the owner and holder thereof, and that there was due to her thereon the full face value of said bonds and mortgages, with interest thereon. A judgment of a court of competent jurisdiction is, as a general rule, final, not only as to the subject-matter thereby actually determined, but as to every other matter which the parties might litigate in the cause and which they might have had decided. Embury v. Conner, 3 N. Y. 511, 53 Am. Dec. 325; Dunham v. Bower, 77 N. Y. 76, 33 Am. Rep. 570; Pray v. Hegeman, 98 N. Y, 351; C. P. P. & M. Co. v. Walker, 114 N. Y. 7, 20 N. E. 625; Reich v. Cochran, 151 N. Y. 122, 45 N. E. 367, 37 L. R. A. 805, 56 Am. St. Rep. 607; Thorn v. De Breteuil, 179 N. Y. 64, 82, 71 N. E. 470. We think that, under the pleadings in these actions, every fact which is here made the basis of this portion of the relief granted might have been litigated. The judgments in express terms, not only determined the absolute ownership by Fannie F. Archer of said bonds. and mortgages, but also the amount due to her thereon, as material facts to the controversy. By such judgments these material facts were conclusively settled, and cannot thereafter be litigated between the parties to said actions while said judgments remain in force. Kelsey v. Ward, 38 N. Y. 83. [2] We think that the learned court at Special Term properly held that George Archer was precluded from becoming the purchaser at the sale under execution against Allison M. Archer of his estate in remainder of the property of which Michael A. Archer died seised, and also at the sale under the judgment in foreclosure of the mortgages above referred to. We cannot accept, however, the reason given by such court for so holding. The duration of the "trust term" under Michael A. Archer's will was measured by the life of Clarissa A. Archer. Upon her death no active trust duty will devolve upon George Archer. Archer v. Archer, supra. It is true that there is a direction to him at that time to sell and convert such estate in remainder; but this is not one of the active trusts permitted by the Revised Statutes which were in force when Michael A. Archer's will became operative. It was neither a direction to sell for the purpose of paying legacies, nor to collect rents and profits and apply them to the use of any person during the lifetime of such person. 1 Rev. St. p. 728, § 55, subds. 2, 3. It was, however, a valid power in trust and enforceable as such, the execution of which power devolved upon George Archer. No person, when he has a duty to perform in relation to property which is inconsistent with the character of a purchaser on his own account for his individual use, is permitted to become such purchaser. Terwilliger v. Brown, 44 N. Y. 237; Fulton v. Whitney, 66 N. Y. 548; People v. O. B. of S. B. B. Co., 92 N. Y. 98. This rule is not limited to trustees of an express trust, but extends to every agent occupying a fiduciary relation to his principal. Terwilliger v. Brown, supra. [3] In the present circumstances plaintiffs have two remedies: They may elect to ratify the unauthorized purchases and to hold the purchaser accountable for the value of the property so purchased by him over and above the amount actually paid by him therefor. This must be, however, without prejudice to the balance remaining due and unpaid upon the second and third mortgages, which are the subjectmatter of the foreclosure action hereinbefore referred to, numbered 2. Or, if the plaintiffs so elect, they may have such sales set aside upon reimbursing defendant George Archer for the amounts actually paid by him, and have a new sale of the property, subject to the liens of the said three mortgages, for the entire amount thereof, at which sale said George Archer will be precluded from purchasing. The plaintiffs have not heretofore been placed in a position in which they were called upon to elect as to the relief to be afforded. For that reason, instead of attempting to pronounce final judgment upon the rights of the parties, as perhaps we have the right to do under section 1317 of the Code of Civil Procedure, we have concluded to reverse the judgment appealed from and order a new trial, and to remit the case to the Special Term to proceed thereon in accordance with the terms of this opinion. [4] It may possibly be important upon the new trial, and for the guidance of the court at Special Term we hold that as to the net rents of the real estate of which Michael A. Archer died seised and pos penses of administering the trust, two-ninths of said net rents belong to the plaintiffs, who are the heirs at law of Allison M. Archer, deceased, as the persons entitled to the next eventual estate in remainder after the termination of the life estate therein for the benefit of Clarissa A. Archer. Moncrief v. Ross, 50 N. Y. 431; Morse v. Morse, 85 N. Y. 53. The judgment appealed from should be reversed upon questions of fact as well as of law, and a new trial granted, costs to abide the final award of costs. All concur. (164 App. Div. 44) DURYEA v. AUERBACH et al. (Supreme Court, Appellate Division, Second Department. October 16, 1914.) INJUNCTION (§ 136*)-VIOLATION OF COVENANT-INJUNCTION PENDENTE LITE. Upon a proceeding to enjoin defendants from selling liquor on certain premises in violation of covenants contained in a deed, in which the record indicated that the principal defense would be that such covenants had become unenforceable by reason of radical changes in the conditions in the locality, and waiver, which issue could not well be tried by affidavits, and should not be unless circumstances almost compelled that course, an injunction pendente lite would not be disturbed, although, as plaintiff had halted, the defendants might move for a vacation of the order, if plaintiff was not ready for trial at the earliest possible moment. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 136.*] Appeal from Special Term, Nassau County. Action by Daniel P. Duryea against Meyer Auerbach and Mary E. Maxon. From an order of Special Term, granting an injunction pendente lite, defendant Maxon appeals. Affirmed. Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ. David M. Neuberger, of New York City, for appellant. Henry A. Uterhart, of New York City (Alfred M. Schaffer, of New York City, on the brief), for respondent. PER CURIAM. This appeal is from an order of the Special Term that grants an injunction pendente lite restraining the defendants from selling malt or spirituous liquors on certain premises in violation of covenants contained in a deed executed in 1880 and continued in certain mesne conveyances. The defenses are that such covenants have become inoperative, unenforceable, and obsolete by reason of the radical changes of the locality and neighborhood and of the conditions thereof, and waiver. The record indicates that this invocation of the doctrine of Trustees of Columbia College v. Thacher, 87 N. Y. 311, 41 Am. Rep. 365, will be the principal defense. Such an issue cannot well be tried by affidavits, and should not be unless cogent circumstances almost compel such course. The general rule in this court is not to disturb this kind of an order. Smith & Sons Carpet Co. v. Ball, 137 App. Div. 101, 122 N. Y. Supp. 187; Heim v. N. Y. Stock Exchange, 138 App. Div. 96, *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 122 N. Y. Supp. 872. On the other hand, the plaintiff, having thus halted the defendants, should not be allowed to rest; and if he is not ready for trial at the first possible moment, the defendants should be heard for a vacation of this order, which is now affirmed, with $10 costs and disbursements. (164 App. Div. 64) COOPER & EVANS CO. v. MANHATTAN BRIDGE THREE-CENT LINE. (Supreme Court, Appellate Division, Second Department. October 16, 1914.) 1. ACTION (§ 46*) -JOINDER OF ACTIONS. Where plaintiff had a cause of action for a balance due for the improvement of defendant's quasi real property, for which plaintiff was entitled to a mechanic's lien, and also a cause of action for loss of anticipated profits from defendant's alleged breach of the same contract, plaintiff was entitled to unite both claims in the same action; and equity, having secured jurisdiction to establish and enforce the lien, would retain control of the entire controversy, and award damages for the loss of the anticipated profits, and this though such issue was triable to a jury. [Ed. Note. For other cases, see Action, Cent. Dig. §§ 449, 451-468; Dec. Dig. § 46.*] - 2. DISCOVERY (§ 30*) — EXAMINATION BEFORE TRIAL CAUSES OF ACTION JOINDER. Where plaintiff properly joined a cause of action to foreclose a me chanic's lien for a balance unpaid for material and labor furnished in improvement of quasi real property, and another cause of action for loss of profits because of defendant's breach of the same contract, it was no defense to plaintiff's right to examine the defendant before trial that plaintiff could not obtain a personal judgment against defendant on the branch of the case for the recovery of damages for breach of contract. [Ed. Note. For other cases, see Discovery, Cent. Dig. § 44; Dec. Dig. § 30.*] Appeal from Special Term, Kings County. Action by the Cooper & Evans Company against the Manhattan Bridge Three-Cent Line. From an order vacating an order to examine defendant before trial, plaintiff appeals. Reversed, and order for examination reinstated. Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ. George E. Miner, of New York City, for appellant. Almet Reed Latson, of New York City, for respondent. CARR, J. In its complaint the plaintiff alleges that it entered into a contract with the defendant to furnish labor and materials at an agreed price in the improvement of the quasi real property of the defendant. It alleges that a balance remains due and unpaid for materials and labor furnished, and that, in addition to the breach of nonpayment, the defendant unlawfully sought to terminate the contract before complete performance by the plaintiff, which it is alleged was prevented by the defendant; and the plaintiff seeks to recover damages, also, for the loss of the anticipated profits. Many of the essen *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |