#### Thomas J. O’Brien, Respondent, *v.*Alva Seybolt, Appellant. (Action No. 2.) Alva Seybolt, Appellant, *v.*Thomas J. O’Brien, Respondent, Impleaded with Raymond J. Neale and Rose Neale, His Wife, Defendants. Thomas J. O’Brien, Respondent, *v.*Alva Seybolt, Appellant.

Third Department,

July 1, 1914

Appeal — authority of Supreme Court in making judgment of Court of Appeals judgment of Supreme Court — stay of enforcement of judgment denied — laches of defendant in asserting alleged settlement with plaintiff until after judgment by Court of Appeals.

When a judgment of the Court of Appeals comes before the Supreme Court on a motion to have it made the judgment of the latter court, the sole and only duty of the Special Term, in the absence of fraud, is to issue an order malting the judgment of the Court of Appeals the judgment of the Supreme Court.

Hence, where a defendant, after a motion has been made to have the judgment of the Court of Appeals in favor of the plaintiff made the judgment of the Supreme Court, commences a suit for specific performance of an alleged agreement of settlement, which he failed to mention at the trial or on appeal, and there is no fraud charged, the Special Term has no authority to stay the enforcement of the judgment of the Court of Appeals until the trial and determination of such suit.

Appeal in the first case by the defendant, Alva Seybolt, from an order of a justice of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Otsego on the 14th day of April, 1914, staying the defendant from enforcing the judgments of the Court of Appeals mentioned in the two following cases.

Appeal in the second case by the plaintiff, Alva Seybolt, from part of an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Otsego on the 15th day of April, 1914. The order was made upon a motion based upon a remittitur from the Court of Appeals, affirming a judgment of the Appellate Division, which, in turn, unanimously affirmed the judgment of the Special Term. The appeal is from so much of the said order *163as stays the appellant from enforcing the judgment, of the Court of Appeals.

Appeal in the third case by the defendant, Alva Seybolt, from part of an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Otsego on the 15th day of April, 1914. The order was made upon a motion based on a remittitur from the Court of Appeals, affirming a judgment of the Appellate Division, which, in turn, unanimously affirmed a judgment of the Special Term. The appeal is from so much of the said order as stays the appellant from enforcing the judgment of the Court of Appeals.

*Seybolt & Seybolt [Alva Seybolt*of counsel], for the appellant.

*John G. Johnson,*for the respondent.

Howard, J.:

Thomas J. O’Brien and Alva Seybolt, the litigants herein, at one time entered into a contract with each other whereby Seybolt agreed to sell, and O’Brien agreed to purchase, certain parcels of land in Oneonta, N. Y. Subsequently O’Brien brought an action against Seybolt to rescind the contract, and then afterwards Seybolt brought an action against O’Brien to foreclose the contract. Finally both of these actions came on for trial, and through the instrumentality of the trial justice, certain negotiations for settlement were had, and it was finally agreed, so O’Brien maintains, that he, O’Brien, was to pay Seybolt seventy-five dollars, and that both actions were to be discontinued, without costs to either party against the other. But Seybolt subsequently changed his mind and refused to settle the actions on the conditions agreed upon. The cases were thereupon put over the term, but were both subsequently tried at another term of the Supreme Court, and both actions terminated in favor of Seybolt. At the trial of the actions O’Brien did not plead nor attempt to plead by supplemental answer that the actions had been settled. • He did not introduce nor attempt to introduce evidence to that effect. In fact he made no effort whatever to avail himself of the alleged settlement of the actions, but proceeded to trial upon the issues as *164they were originally framed. Upon the alleged settlement, and its effect upon these actions, O’Brien stood silent. After he was beaten in the trial court he appealed both actions to the Appellate Division; there he was beaten again. From the judgment of the Appellate Division he appealed to the Court of Appeals; there he was again defeated.

After the remittitur of the Court of Appeals was filed in the county clerk’s office of Otsego county, and after Seybolt had made a motion to have the judgment of the Court of Appeals made the judgment of the Supreme Court, O’Brien began a new action for a specific performance of the terms of the alleged original agreement to settle the actions. In his demand :or •;elief O’Brien also asks that Seybolt he enjoined and restrained from collecting or attempting to collect, or from enforcing, the two judgments of the Court of Appeals. At the time of the return of the motion to have the judgments of the Court of Appeals made the judgments of the Supreme Court O’Brien had not yet begun his action for specific performance. He obtained an adjournment of the motion and in the meantime began the action. O’Brien induced the Special Term to insert in the order making the Court of Appeals judgment the judgment of the Supreme Court a provision that Seybolt he stayed from enforcing the judgments until the trial and determination of the new action begun by O’Brien. He also obtained from the court a separate order on separate motion papers of his own to the same effect; that is, staying Seybolt from enforcing the two judgments of the Court of Appeals.

In the order making the judgment of the Court of Appeals the judgment of the Supreme Court, the Special Term has done something more than to grant the motion — it has stayed .the execution of the judgment until after the trial and determination of the action brought by O’Brien against Seybolt. When a judgment of the Court of Appeals comes before the Supreme Court on a motion to have it become the judgment of the latter court, the sole and only duty of the Special Term is to issue an order making the judgment of the Court of Appeals the judgment of the Supreme Court. (Code Civ. Proc. §§ 194, 1320; *Macgregor v. Buell,*17 Abb. Pr. 31; 33 How. Pr. 450.) Whatever the Court of Appeals has ordered must he done. In this *165case the remittitur orders that the judgment of the Court of Appeals be sent to the Supreme Court “to be enforced according to law ” — not to be held up, stayed or delayed.

These cases went through all the courts; that is, from the trial court to the Court of Appeals. O’Brien was beaten at every step. The Court of Appeals, the tribunal of last resort, has reviewed his cases and decided against him. The mandate of that court is final, conclusive and absolute. In the absence of fraud (and there is no fraud charged here) the judgment of the Court of Appeals can never be modified or interfered with, stayed or obstructed. It is the last word in the law. It cannot be questioned; it must be obeyed. At the time O’Brien went to trial in the two cases he had full knowledge of the settlement, if there was any settlement, of both causes of action. Had he attempted to interpose the defense of settlement there is no doubt that he would have been permitted to do so. He went through all the various stages of the litigation without opening his mouth on the subject. Even if the alleged settlement was ever valid and could ever have been enforced, O’Brien’s laches in asserting his rights is wholly intolerable. To indulge such tactics as he has employed is to trifle with the courts and with the administration of justice.

All three of the orders granting a stay of the execution of the judgments of the Court of Appeals should be reversed, with ten dollars costs in one case.

All concurred; Lyon, J., not sitting.

In *Obrien*v. *Seybolt, No.*2, order reversed, with ten dollars costs and disbursements, and motion denied, without costs. In the other two actions, orders so far as appealed from reversed, with disbursements.