Coster v. Clarke

The Vice-Chancellor : In Bradish v. Gee, Ambl. 229, Lord Hardwicke declared that where a decree is made by con- * sent of counsel, there can be no appeal or rehearing, although the party might not really have given his own consent. His remedy, his lordship said, was against his counsel; and if the decree were by fraud and covin, then relief was not by appeal or rehearing, but by original bill. In Harrison v. Rumsey, 2 Ves. sen. 488, he had shortly before adjudged the same point. Other cases are cited to the same effect in 1 Hoffm. Ch. Pract. 27. So, in Decarters v. La Farge, 1 Paige’s C. R. 574, the Chancellor held, that where the counsel of the defendant, upon the hearing, abandoned the defence, a rehearing would not be granted upon the ordinary certificate of two counsel. The rule that no appeal or rehearing lies from a decree made by consent was recognized in the court for the correction of errors in Atkinson v. Mahks, 1 Cow. R. 709. It seems to me that the decree now complained of must be regarded as a decree taken and entered by consent and within the rule. Another objection exists to the opening of the decree : the parties have gone on under it before the master and submitted their accounts and awaited his report. This, if not conclusive, is a.strong circumstance against granting a rehearing : Atkinson v. Manks, supra; Consequa v. Fanning, 3 John. C. R. 364. But, even upon the merits of the decree, I am of opinion that the priority of payment out of the proceeds of the real estate, when sold, in favor of the complainant Coster and the executors of Butler for the advances made by them to pay for the property when purchased, is warranted both ~by the fair construction of the articles of agreement and by the natural equity of the case. With respect to the ferry, however, its boats, lease and good will, when sold, I think the money it brings should be applied, in the first place, to discharge the rent in arrear due to the corporation of the city of New-York, the debt to the Delaware and Hudson Canal Company for coal and the advances made by the defendant James B. Clarke, towards supporting the ferry. The ferry property will, of course, be sold separately; and [411] an order can be made upon the foot of the decree and under the right reserved by the concluding clause of it directing the appropriation of the proceeds accordingly. A rehearing of the cause is not necessary for that purpose. The defendant Clarke is too late in setting up a claim for commissions or compensation for his services. He should have made the claim in his answer. But according to Butler’s affidavit, he expressly waived it in consideration of being allowed interest on his advances ; and in relation to interest, it appears that the master’s report is made in conformity with what he was satisfied to claim. He cannot be permitted, now, to take exceptions to the report. In the conflict of opinion between the parlies, the court cannot interfere with the time of sale by the master under the decree. The whole of the application must be denied, with costs.