#### Abraham Gitler and Abraham Cohen, Respondents, *v.*The Russian Company for Sea, River and Land Insurance, Conveyance of Goods and Advances on Goods in Warehouses, Appellant, Impleaded with National Bank of Commerce in the City of New York and Others, Defendants.

First Department,

February 14, 1908.

Equity— setting aside judgment obtained by fraud—pleading—defenses to creditor’s bill — contract not to bring creditor’s suit in this State valid.

While equity will sometimes interfere to set aside a judgment obtained by fraud or unfair practices, it will not do so where the only fraud alleged is that the judgment was procured by perjured testimony.

Judgments will be set aside only for frauds extrinsic or collateral to matters involved in the trial.

Hence, it is no defense to a creditor’s bill seeking to reach property in aid of a judgment to allege that upon the inquest on which the plaintiff’s judgment was obtained, the witnesses testified falsely respecting the value of goods which were the subject of the action.

But it is a good defense to such creditor’s bill to allege that subsequent to the plaintiffs’ j udgment they agreed for a valuable consideration not to bring any action in this State against the defendant-upon or in respect to said judgment, but that such suit, if brought at all,, should be brought in a foreign country.

Such agreement is not void as against public policy for ousting our courts of jurisdiction, because it refers only to the method to be adopted for the collection of a particular judgment and does not cancel the same or debar the plaintiffs from pursuing any appropriate remedy for its collection, save only the prosecution of a particular remedy in the courts of this Staté.

A contract to refrain from pursuing a particular remedy to enforce an existing claim is valid, since public policy is in no way concerned with the option which every man has to sue or to forbear to sue.

Appeal by the defendant, The Russian Company for Sea, River and Land Insurance, etc., from so much, of an interlocutory judgment of the Supreme Court in part in favor of the plaintiffs, entered in the office of the clerk, of the county of Revv York on the 5tli day of October, 1907, upon the decision of the court rendered after a trial at the New York Special Term as sustains the plaintiffs’ demurrer to the first and second separate defenses and *274"counterclaims contained in the second amended answer1 of the said defendant.

*Howard Thayer Kingsbury,*for the appellant.

*Alfred JD. Lind,*for the respondents.

Scorr, J.:

The defendant appeals from so much of an interlocutory judgment as sustained a demurrer to the first and second separate defenses contained in the answer. The action is in the nature of a creditor’s hill seeking to reach certain property alleged to belong to defendan t, and therewith to satisfy a judgment entered in favor of plaintiffs against defendant on November 13, 1902. The first separate defense seeks to' avoid the judgment entirely or to forever restrain its collection upon the ground that it was obtained by fraud. The defense sets forth, that the judgment was obtained' by default, upon an inquest, and that the defendant has unavailingly used every possible effort to have its default opened and the judgment vacated. The fraud charged is that upon the inquest one of the plaintiffs, who was called and sw.orn as a witness, ’ testified falsely respecting the value of the 'goods which were the subject of the action. It is manifest that the demurrer to this defense was rightly sustained. While equity will sometimes intervene to set aside a judgment obtained by fraud or unfair practices, it will not do so where the only fraud alleged is that it was procured by perjured testimony, or for any matter which was actually presented or considered in the judgment assailed. The only frauds for vyhich a judgment will bo set aside in an independent action are those which are extrinsic or collateral to. the matter tried by tlie first court, and not a fraud in the matter on which the decree was rendered. *(Mayor, etc., of N. Y.*v. *Brady,*115 N. Y. 599.) The -dernurrer to the second separate defense raises a more difficult question. The defense is:' That “ in or about the month of November, 19.02, and subsequent to the entry of the judgment referred, to in the complaint herein, the plaintiffs for a valuable consideration agreed with this defendant herein that they, the said plaintiffs, would not bring any action in the State of New York against this defendant upon or in respect to the judgment referred to in the complaint herein, but that any such *275action should be brought, if at all, in Russia, and thereafter such an action was brought in Russia by an assignee of plaintiffs.”

The objection urged against this defense is that the agreement therein pleaded is void and against public policy, because its purpose and effect' is to oust the courts of this State of jurisdiction. It is a rule of general acceptance'that parties cannot by agreement or stipulation oust the courts of their jurisdiction as to controversies thereafter to arise. *(Insurance Co.*v. Morse, 87 U. S. [20 Wall.] 445.) This rule has been applied in innumerable cases where insurance policies, building contracts and the like have contained stipulations, that differences or disputes arising under them should be determined by arbitration or tried only in the courts of a particular jurisdiction. The question presented here is somewhat different. The agreement pleaded in the answer and admitted by the demurrer has reference only to the method to be adopted for the collection of a particular judgment, and its purport is not to cancel the judgment or to debar the plaintiff from pursuing any appropriate remedy for its collection, save only the prosecution of the particular remedy by action in *the*courts in this State.

It is difficult to see how the public policy which forbids an agreement to withdraw from the ordinary jurisdiction of the courts future and unknown controversies can have any proper application to such a contract as is relied upon in this case. In *Insurance Co.*v. *Morse (supra)*it was said : “A man may not barter away his life or his freedom or his substantial rights. * * * In a civil case he may submit his particular suit by his own consent to an arbitration, •or to the decision of- a single judge. So he may omit to exercise his right to remove his suit’to a Federal tribunal as often as he thinks fit in each recurring case. In these aspects any citizen may, no doubt, waive the rights to which he may be entitled. He cannot, however, bind himself in advance by an agreement which may be specifically enforced thus .to forfeit his rights at all times and on all occasions whenever the case may be presented.” It is thus made clear that the Supreme Court, in deciding *Insurance Co.*v. Morse, which is recognized as a leading authority in this country, had clearly in mind the distinction between an agreement not to submit to the courts a particular pending controversy, and an agreement to withdraw from the jurisdiction of the courts all future *276controversies that might arise respecting the relative rights of the contracting parties, and that its decision was limited to the latter class of agreements.

It is well settled that parties by stipulation or agreement may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but. which the courts are bound to enforce. *(Matter of New York, L. & W. R. R. Co.,*98 N. Y. 447.) They may by agreement limit the scope of judicial inquiry in a pending action and a stipulation to that effect is not unreasonable, or against good morals or public policy. *(Hong Kong & S. Banking Corporation*v. *Cooper,*114 N. Y. 388.)' It lias accordingly held in this State that a stipulation not to appeal to the Court of Appeals, in an appealable casé, will be enforced *(Townsend*v. *Masterson, etc., Stone*Dressing *Co.,*15 N. Y. 587), providing it is clear in its terms and leaves no doubt of the intention of the party so stipulating to cut himself off from the right, of appeal. *(Stedeker*v. *Bernard,*93 N. Y. 589.) The promise .to forbear to prosecute a particular claim upon which one has a right to sue is universally held to be a sufficient consideration to support a contract (9 Cyc. 338), a:id it certainly could not be held to be a sufficient consideration if it was itself invalid and unenforcible. We are of the opinion, therefore, that a valid contract may be made to refrain from pursuing a particular remedy to enforce an existing claim, since public policy is in no way concerned with the option which every man has to sue or forbear to sue. *(Perryman*v. *Allen,*50 Ala. 573.) The agreement in the present case goes no further than'this. The cause of action to enforce the judgment was the plaintiffs’. They could do with it as they saw fit to the extent of releasing it wholly on the one hand, or . of prosecuting every legal method for its collection on the other. Whatever course they saw fit to adopt was no matter of public concern, and affects no question of public policy, and if they saw fit to •make an agreement, otherwise valid, that they would forbear to pursue their remedy by action in the courts of this State, there is no public policy which renders that agreement invalid.

It follows that the interlocutory judgment must be affirmed in so far as it sustains the demurrer to the first separate defense, and that as to the second separate defense the interlocutory decree must be *277reversed and the demurrer overruled, without costs in this court to either party.

Patterson, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment affirmed in so far as it sustains demurrer to first separate defense, and judgment reversed as to second separate defense, and demurrer overruled, without costs in this court to either party. Settle order on notice.