#### BARNARD v. STARKEY et al.

(Supreme Court, General Term, Second Department.

June 18, 1894.)

Judgment—Effect of Conflicting- Judgments.

A judgment requiring defendant to deliver securities held by him *as*trustee to plaintiff is not excusable because, pending the action, he delivered the securities to a trust company, pursuant to a judgment against him in another county, where he did not seek to protect himself by having the trust company made a party to plaintiff’s action, or to have plaintiff made a party to the action in which he was ordered to deliver the securities to the trust company.

Appeal from special term, Kings county.

Action by John T. Barnard, as temporary administrator of Ann E. Crouse, deceased, against Clinton W. Starkey, John F. Gantz, and others. From an order denying a motion to punish for contempt, plaintiff appeals.

Reversed.

Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.

Geo. G. Barnard, for appellant.

John F. Sullivan, for respondent.

CULLEN, J.

The plaintiff recovered a judgment, on the decision of the court of appeals, that defendants forthwith deliver to him certain specified securities. With this judgment the defendants fail to comply, and a motion is made to punish defendant Starkey for contempt. He answers that in an action in this court in New York county, to which this plaintiff was not a party, he (Starkey) was removed as trustee, and directed to transfer the securities to the People’s Trust Company, as substituted trustee; that in compliance with such judgment he so transferred the securities. This transfer was made pending this litigation, after a judgment in the trial court against the plaintiff, which was then on appeal to the general term, where it was reversed. The court denied the motion to punish for contempt, holding the plaintiff must seek relief in the New York action. This we think erroneous. The plaintiff’s judgment is in full force and effect. The defendant Starkey has not sought to be relieved from it. The plaintiff has therefore the right *866to enforce it to the same extent as any other judgment. Had the transfer been made previous to the commencement of this action, the defendant would have been compelled to plead that fact as a defense. If he failed to do so, and judgment went against him, he could not attack that judgment afterwards. The transfer being had pending the action, he could, after the decision at general term, set up the fact by supplemental pleading. He could have secured perfect protection by application to have the new trustee made a party to this litigation, and by having the plaintiff made a party to the litigation in Hew York. He failed to take any steps to protect himself, and now fails to comply with the judgment against him. We do not say that he may not obtain relief now by applying to open the judgment in this action, and obtaining an order in the Hew York action for the transfer of the bonds to the plaintiff. But it is clear to us that it is the defendant who is embarrassed by the two judgments, and who must seek relief, and not the plaintiff. The plaintiff has the right to stand on Ms judgment, and, having recovered it, cannot be compelled to bring a new litigation. The motion might well have been held over to permit the defendant to apply for relief, but the absolute denial of the motion to punish for contempt practically abrogates the plaintiff’s judgment. The order appealed from should be reversed, with $10 costs and disbursements, and motion granted, but proceedings thereunder stayed for 60 days, to enable defendant to apply for such relief in this action and in the Hew York action as he may be advised. All concur.