Kinnan v. Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Co.

Finch, J.

There is sufficient evidence in this record to sustain the judgment for equitable relief which has been rendered. Although the facts are not full and precise, and not so developed in detail as to escape some natural criticism, yet they were established to the satisfaction of the trial judge, whose findings have been approved by the General Term, and must be conclusive here unless there is no evidence to support them. That is claimed to be the case as it respects the authenticity and genuineness of the stock certificates which have been lost and are sought to be replaced. It is true that nobody testified to their signature by the officers of the company, but that was because no witness was asked that question and no point was made directing attention to that specific inquiry, and the papers themselves were lost and could not be produced. But the witnesses described them as the certificates of the company, and one of those witnesses was Conover himself, to whom they were originally issued and who sold them to the testator, and who, having been at one time president of the corporation, must have certainly known that the certificates *186 were what he described them to be. Beyond that, when the case for the plaintiff was closed, the defendant’s counsel called nt> witnesses, but rested the entire defense upon a motion for a non-suit. Five grounds were assigned, and not only was there an omission to suggest any such defect in the proof as is now argued, but each of those grounds went upon and involved an assumption and tacit admission that the certificates were the authentic obligations of the company. If their validity had been challenged, the court might have permitted further proof and the plaintiff been able to furnish it. • It is too late now to raise the question.

■ Passing by some minor objections to the recovery, which do not' seem to us important enough to require discussion, we reach the one upon which thé appellant seems principally to rely. ’ It is that the court was not at liberty to grant the equitable relief sought, because there was an adequate remedy at law. That defense was specially pleaded, and its validity was rested upon an act of the legislature giving a summary remedy in cases like the present. That act (Laws of 1873, chap. 151) provides in substance that one who has lost his stock certificate and finds the company unwilling to replace it, may apply at a Special Term of the Supreme Court for an order to show cause why a new certificate should not be given, and ’ on the hearing the court may proceed summarily to hear and determine the facts, and may make an order requiring the company to issue a new certificate upon receiving from the petitioner a specified bond of indemnity, and this proceeding is called by the appellant a remedy at law. I deem it to be nothing of the kind. It gives a relief which a court of law as such never did give and was not competent to give. It is exactly the relief which in such a case a court of equity would regularly and habitually award, and not at all such as a court of ■ law could give. Under our present system, the distinctive difference between legal and equitable remedies lies in the character and scope of the relief which may be obtained,(Reubens v. Joel, 13 N. Y. 492 ), and a remedy which, instead ■of awarding damages or a sum of money, decrees the giving *187 of an indemnity bond, and the issue of a new certificate of stock is wholly and clearly an equitable remedy. The Supremo Court has equity' jurisdiction. Its Special Term may give equitable relief, and when a statute sends a petitioner there for an award which equity alone could give, it amounts to the creation of a new and summary equitable remedy, and cannot be deemed or denominated a remedy at law. The statute, therefore, cannot support the defense pleaded. There are no words in the law purporting to restrain the ancient and admitted jurisdiction of equity to award specific relief in cases of this character, and I think the statute must be regarded as giving a cumulative, additional and summary remedy of a purely equitable character, and to be administered by an equity court..

We find no error in the judgment, and it should be affirmed,, with costs. .

All concur.

Judgment affirmed.