Colon v. Hebbard ( 1907 )

CARR, J.

Unless counsel agree that I'may dispose of this case as an action at law, I must send it to. the Trial Term. The facts disclosed might justify equitable relief under a proper pleading, but the case comes before me in a shape which makes it wholly one of law. On the facts disclosed on the trial this plaintiff should get back his money, as having been paid under the duress of a judicial order procured by fraudulent statement of facts which were absolutely essential to the order of the city magistrate. The defendants Hebbard and Meeks are trustees of this fund, not as public officers, but as individuals. There, is no provision of statute which imposes on them any duty in the premises. As individuals they will be protected by any judgment in this action, as all the necessary parties are before the court. Unless, however, through their counsel, they consent to waive a jury trial, I cannot dispose of it over their objection on that ground.

If counsel cannot get together on this point, let an order be presented sending the case to the general calendar of the Trial Term.

The stipulation aforesaid having been furnished, the following was filed:

CARR, J.

On the stipulation of counsel waiving a jury trial, judgment will be granted to the plaintiff for the actual balance remaining undisbursed, but without costs. Settle findings.

Judgment accordingly.