Supreme Court, January, 1915. [Vol. 88. action; that the defendants Frank Labriola and Antonetta Labriola be directed to pay to the defendant Miano the amount adjudged to be due him, and that Miano be required to accept such payment in satisfaction of his claim, and that the plaintiff recover from the defendants Labriola the costs and expenses of bringing this suit and the expenses incurred in defending the actions brought by Miano against the surety company. The answer of Miano admits all the allegations of the complaint and joins in the prayer of the plaintiff for the relief therein demanded, except that he does not join in the prayer that he be required to accept the sum awarded in full payment of his claims. But the answers of the defendant Labriola put in issue all the facts upon which Miano's right to recover for his injuries depends, and they also set up various defenses. No claim has ever been made by Miano against the defendant Antonetta Labriola, except the claim asserted by his demanding relief against her in this action. In this case, therefore, the court, sitting as a court of equity, is asked to try an accident case, to determine whether the person injured is entitled to recover, and, if so, the extent of his injuries and the amount to be awarded as damages, and, finally, to direct payment of such damages by one defendant to another. Furthermore, this relief is sought by the liquidator of an insolvent surety company which is concededly liable to the injured man, but which has paid nothing on the claim and can only hereafter be injured to the extent of such partial payment as it may ultimately make by way of a dividend on the claim. Nevertheless, it claims the right to require payment in full by the third person, whom the person injured has not attempted to hold liable and in whose favor the Statute of Limitations is now a complete protection against any claim by him. I do not think Mise.] Supreme Court, January, 1915. that the jurisdiction of a court of equity has yet been so far extended as to include a case of this character; nor do I think that the plaintiff would be entitled to such relief even if the jurisdiction existed. Furthermore, I do not find that the business was conducted by or on behalf of Antonetta Labriola, or that she was at any time liable for the injury. As to the defendant Frank Labriola, a judgment has already been recovered against him by the injured person. If his liability, evidenced by this judgment, has been discharged in bankruptcy, the plaintiff can hardly maintain an action to compel him to pay the very creditor from whose claim he was thus discharged. If that judgment was not discharged, it is still enforcible, and another judgment against him and in favor of the injured person for the same wrong cannot properly be asked. Nor is the plaintiff in any position to ask reimbursement for expenses incurred by the surety company in defending against the claim made upon it by the injured person. The proposition that the claim was a meritorious one is at the foundation of the present action. Whether a surety may or may not recover counsel fees and other expenses from his principal depends on the facts of the case (City Trust S. D. & S. Co. v. Am. Brewing Co., 182 N. Y. 285, 291), but they are not to be allowed where it appears that they were incurred in defending against a meritorious claim. Thomson v. Taylor, 72 N. Y. 32, 34. If the surety company had settled this concededly meritorious claim when it was presented, as it ought to have done, it would not now be under the necessity of invoking the extraordinary remedies which are sought in this action, and the injured workman would not be in his present predicament. Judgment for defendants Labriola. Submit, with proof of service, requests for findings within five days after the publication of City Court of New York, January, 1915. [Vol. 88. this memorandum. The question of costs is reserved until the requests for findings of the respective parties are passed upon. Briefs relative to costs and to the requests to find may be left with the clerk within two days after the service of such requests, at the expiration of which time all papers are to be submitted by the clerk to me. Ordered accordingly. JOSEPH ELIAS, Plaintiff, v. COLEMAN & KRAUSE, Defendant. (City Court of the City of New York, Special Term, January, 1915.) Motions and orders - when motion by defendants to be relieved from certain admissions as to delivery receipts granted when trial justice may decline reference and return motion to Special Term. Where certain admissions as to delivery receipts received in evidence on the trial of an action were made and acted upon in reliance on the court's statement that they were only for the purposes of the then pending trial, a motion by defendants to be relieved therefrom should be granted, even if it should be determined that they were gratuitous, did not speak the truth, were inadvertent or based on the attorney's misunderstanding. Where such motion comes before the Special Term and is referred to the trial justice and necessitates the determination of facts within his personal recollection, he may decline the reference and respectfully return the motion to the Special Term. MOTION by defendant to be relieved from certain admissions made as to delivery receipts received in evidence upon the trial of this action. Lawrence H. Sanders (Arthur B. Hyman, of counsel), for appellant. Warren McConihe, for respondent. Misc.] City Court of New York, January, 1915. LA FETRA, J. This is a motion by defendant to be relieved from certain admissions made as to delivery receipts received in evidence upon the trial of this action on Friday, February 9, 1912. The cause was placed on the calendar in Part II as one to be tried within two hours. Before impanelling the jury at twenty minutes to eleven in the morning, upon inquiry, the court was informed by plaintiff he would occupy about ten minutes in presenting his prima facie case. The defendant stated he had twenty-three or more witnesses; that the testimony of each witness would take but little time; that although he thought the action could not be tried within two hours he was anxious to expedite it, as he intended to leave on the afternoon train that he might spend the following Monday- Lincoln's Birthday with his family at Atlantic City. The court suggested from the array of witnesses the possibility of counsel agreeing to return the cause to the general calendar. Suffice it to say the trial was continued until about twenty minutes after three o'clock in the afternoon, when plaintiff's complaint was dismissed. The action was to recover upon a combined oral and written contract to glaze sash for double hung windows for a large office building down town. In the upper sash there was to be rough wire glass and in the lower polished plate wire glass. There were to be 124 polished plate and 246 rough wire lights of varying sizes. Sashes were to be delivered to the plaintiff and returned to the defendant glazed. The plaintiff claimed he had substantially, but not entirely, performed the contract, and sought to recover the contract price. He was the first witness called and counsel attempted to make out a prima facie case from the mouth of the witness, although he had no present recollection of the details, as the work was being performed and the City Court of New York, January, 1915. [Vol. SS. sashes as glazed were being returned by his employees. In this he ran counter to well founded legal objections in behalf of defendant to the many questions propounded. He then sought to have the witness refresh his recollection, first, from the written contract, Exhibit A, and failing in this from the bill of particulars in the action. Instead of the witness' recollection being refreshed as to the sashes glazed and those returned it became apparent he was reading the contents of the papers. All the while there was a persistent effort to argue upon each question propounded to such an extent as to call forth the admonition of the court. The result was the trial became protracted and some testimony as to details was elicited from the witness without objection from defendant. Finally plaintiff offered for evidence receipts which purported to show the return of certain glazed sash. The receipts called for 173 single sash glazed with rough wire glass, 53 rough wire lights, 115 single sash glazed with polished plate wire glass and 9 polished plate wire lights. There were interlineations and erasures in many receipts. Plaintiff's efforts were met with like objections and the colloquy between counsel continued. The court suggested from time to time there must be something for the purpose of the trial that counsel could agree upon. Finally the court advised counsel for the purposes of the trial only they must agree or it would hold them strictly to the two-hour rule or sit for the entire day according to its determination as to where the fault was. Thereupon the defendant's counsel hastily consulted with persons about him and with plaintiff's counsel and the receipts were rapidly offered and allowed in evidence. Some qualified as to details in the receipts, others, as far as the records of the two appeals show, absolute and unqualified, but all unquestionably acted |