#### CASEY v. LESLIE.

(Supreme Court, Appellate Division, Fourth Department.

December 16, 1896.)

Stipulations—Effect.

A party cannot prove facts different from the facts stipulated between the counsel, unless he is relieved of the effect of the stipulation.

The plaintiff in this action was a stockholder in, and the president of, the Casey Machine & Supply Company, which was a corporation organized under the laws of the state of New Jersey, in August, 1888, with its principal place of business in the city of New York. In December, 1890, a bill was filed in the New Jersey court of chancery by certain stockholders of the company, alleging its insolvency, and asking for an injunction, the appointment of a receiver, the distribution of its assets, etc. Thereafter, and upon the loth day of December, 1890, by an order of the same court, the defendant was duly appointed receiver of such corporation, and thereupon executed his official bond, and entered upon the discharge of his duties. Following the commencement of the New Jersey action, and upon the 29th day of the same month, one Simon Strauss, who was one of the plaintiffs named in the bill filed in New Jersey, commenced a similar action in the supreme court of this state; and upon the 7th day of January, 1891, the defendant was duly appointed receiver of the company, by an order of the court in the last-mentioned action. On the 25th day of September, 1891, the defendant, as such receiver, offered for sale, at public auction in the city of New York, the property and assets of the Casey Machine & Supply Company, and the same were bid off at such sale by the plaintiff, for the sum of $29,500, 10 per cent, of which sum was paid by him in cash. It appears that a few days prior to the sale, and upon the 21st day of the same month, the plaintiff applied to the court of chancery of New Jersey, in the suit there pending, for an order instructing the receiver as to the terms of sale of the company’s assets, and that such application resulted in the granting of an order, which, as thereafter amended, directed that the terms of sale should be as follows, viz. 10 per cent, cash upon the day of sale, and the balance in 20 days thereafter; such property and assets to be put up and offered for sale in three different ways, and any stockholder or creditor of the company who shall purchase at the sale to be at liberty to apply to the court for relief as to the payment of the balance of his bid over and above the 10 per cent, above named, to the end that the whole or such part of the debt owing to him, or the value of the stock held by him, may be credited as a payment on account of his bid, as shall seem under the circumstances to be equitable to the chancellor. At the conclusion of the sale, the defendant delivered to the plaintiff’s solicitor a written receipt for the $29, which contained a recital that the same was to apply upon the property sold “under the orders of the court of chancery of New Jersey, and in accordance with the terms of said orders and the conditions of sale therein founded.” The receiver subsequently made a report of such sale to the chancellor, and the same was duly confirmed, the order of confirmation containing a provision to the effect that the property sold might be delivered to the purchaser prior to the time named in the conditions of sale, provided such purchaser was ready and willing to receive the same, and pay the balance of the purchase money. It further appears that, upon the expiration of the 20 days specified in the conditions of sale, the plaintiff found himself unable to pay the balance of the purchase money; and, upon his application, the court twice extended his time for the payment thereof. Finally, the receiver served him with a notice that he should apply to the chancellor for an order directing a resale, and such application was made and granted upon the 16th of November, 1891, the plaintiff appearing thereon by his solicitor, and opposing the same. The property was thereafter sold to another party, for the sum of $11,700; and in November, 1894, the plaintiff brought this action, to recover back the $2,950 paid by him upon the first sale.

Action by Jeremiah Casey against Henry D. Leslie, as receiver. Defendant moves for a new trial, on exceptions ordered to be heard by the appellate division in the first instance.

Granted.

*363Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ.

John Van Voorhis, for plaintiff.

Pierre M. Brown, for defendant.

ADAMS, J.

One of the propositions to which the attention of this court was directed upon the argument of the defendant’s motion was that the precise question sought to be litigated in this action was determined by the New Jersey court of chancery, in the proceedings had in that court, and that, consequently, it is now res adjudicata. This suggestion is one which would certainly merit and receive careful consideration at our hands, did we regard the issue which it presented as one which it can be fairly said was litigated and disposed of at the trial term, for it is undoubtedly true that if the plaintiff has, as a matter of fact, submitted his person and the same rights for which he is now contending to the jurisdiction of a competent court in a foreign state, he is concluded by the determination of that tribunal, and cannot retry the same questions in this state. New York & N. J. Tel. Co. v. Metropolitan Telephone & Telegraph Co., 81 Hun, 453, 31 N. Y. Supp. 213; Dobson v. Pearce, 12 N. Y. 156. But, as just intimated, the record does not disclose, so far as we are able to discover, that this proposition was pressed with very much ardor upon the trial, although it did furnish oné of the grounds upon which the defendant moved to dismiss the plaintiff’s complaint. The case seems to have been disposed of, however, upon an entirely different theory, and one which was apparently adopted after issue had been joined. We prefer, therefore, to consider this motion from another point of view than the one just adverted to.

The plaintiff, in his complaint, alleges, for his cause of action, the sale by the defendant of the property of the company of which he was the receiver, upon terms and conditions substantially the same as those to which reference has already been made; admits his inability to comply with such terms by paying the entire purchase price in money; and then claims that the New Jersey court of chancery acquired no jurisdiction over the defendant, as such receiver, in relation to any sale made in this state; that, consequently, the terms and conditions announced at the sale were made upon the individual responsibility of the defendant; and that it therefore became his duty to perfect the sale by turning oyer the property to the plaintiff, upon a payment being made by him of a sum equal to the entire indebtedness of the corporation, which, it was claimed, did not then exceed $9,000. • After issue was joined by the service of an answer, a motion was made by the defendant to change the place of trial from the county of Monroe to the city and county of New York. This motion was denied upon certain conditions, which were subsequently embraced in a written stipulation, of which the following is a copy, viz.:

> “Pursuant to the order dated March 4th, 1895, and entered March 21st, 1895, in above-entitled cause, it is hereby stipulated that, upon the sale in question, *364no representations were made by the receiver, except such as appear in the written or printed notice of the conditions of sale.

> “Dated March 26th, 1896.

> “John Van Voorhis & Sons, Plaintiff’s Attorneys.

> “To P. M. Brown, Defendant’s Attorney.”

The language of this stipulation is quite free from ambiguity, and its import is not difficult of apprehension; for it, in express terms, declares that, upon the sale in question, no representations were made by the receiver other than those which appear in the written or printed notice of the conditions of sale, and yet it appears that, upon the trial, the plaintiff, instead of being confined to the limitations defined by his stipulation, was permitted, over the objection of the defendant’s counsel, to detail certain other terms and conditions, which, he says, were made, not at the sale, but some seven days prior thereto, on the corner of Fulton street and Broadway, in the city of New York; and the terms and conditions thus detailed were, evidently, relied upon by him as establishing an absolute agreement upon the part of the defendant to accept from the plaintiff, if’ he purchased the property in question, a sum of money which should be sufficient in amount to pay the debts of the corporation, and the expenses of the receiver, and to permit the balance of his bid to be credited to him and the other stockholders. It will be seen, therefore, that, by admitting this evidence, not only was a different issue presented from the one tendered by the complaint, but it also appears that the jury were instructed by the learned trial court that the only question in the case requiring their consideration was whether or not the agreement testified to by the plaintiff was, in fact, made by the defendant.

We are at a loss to understand, and the record furnishes no satisfactory explanation-of, the precise theory upon which evidence, of any other conditions than those imposed at the sale was admitted. It is now insisted that this stipulation was not read in evidence, but it appears in the printed appeal book as a part of the record, and it was referred to upon the trial, and furnished the ground of the defendant’s objection to the evidence we have been considering. It is quite possible that its full force and scope escaped the attention of the trial court, or it may have been supposed that the terms and conditions testified to by the plaintiff as having been furnished to him by the defendant in the street were not within and covered by the stipulation, because not made upon the sale; but, as we have seen, unless made at the sale, they were not competent for any purpose, because no other terms and conditions are alleged in the complaint. It necessarily follows • that, until revoked by some competent authority, the stipulation was conclusive upon the party making it; and a violation of its terms should not have been permitted. People v. Rathbun, 21 Wend. 509, 543; Davies v. Burton, 4 Car. & P. 166; Heming v. English, 6 Car. & P. 542. It was doubtless within the power of the court to relieve the plaintiff from its conditions, if good reason, could have been shown therefor (Malin v. Kinney, 1 Caines, 117; Barry v. Insurance Co., 53 N. Y. 536); but there is nothing to indicate that any application *365for such relief was ever addressed to the court, or that the plaintiff has attempted to escape from its legitimate effect in any other way than by simply ignoring it. We conclude, therefore, that the evidence which was thus admitted over the defendant’s objection was •either irrelevant to the issue, or else that its admission was a violation of the terms of the plaintiff’s stipulation. In either case the exception to its reception presents error, which seems to require a new trial.

The defendant’s exceptions should therefore be sustained, and a new trial granted, with costs to abide the event. All concur.