Shipherd v. Crowell — 1 A.D. 212

Majority

p. 212

Jacob R. Shipherd, Appellant, v. Charles B. Crowell, Respondent.

Headnote

Pending divorce suit — stipulation that, after its trial, certain letters shall be returned to the writer, eharrged with alienating the wife’s affections ■—• effect of a delay in prosecuting the divoi'ce suit on the right to a mrrender of the letters.

Upon the trial of an action in equity it appeared that the defendant, Charles B. Crowell, had brought an action for divorce against his wife; that he had also brought another against the present plaintiff, Jacob H. Shipherd, for alienating the affections of Mrs. Crowell; that the plaintiff desired to gain possession of certain letters written by Shipherd, and that before these two actions were reached for trial the parties interested entered into a stipulation which provided for the discontinuance of the suit of Orowell v. Shipherd, and further provided that all letters written by Shipherd, and which were the subject in part of either of the actions, should be delivered to Shipherd or his attorney within three days after judgment had been granted in the suit of Orowell v. Orowell, or within three days after its discontinuance, if it should be discontinued.

The complaint in the present action is based upon allegations that there is no attempt upon the part of the defendant Crowell to try his action of divorce against his wife; that his attorneys have published false statements relative to Shipherd and Mrs. Crowell, and that when Shipherd consented to the stipulation concerning the letters, he did so only upon the assurance of the attorneys of Crowell that the suit for a divorce would be brought to an immediate trial, and that the letters of Shipherd would be immediately surrendered, and demanded as relief that the prosecution of the action of Orowell v. Orowell, in so far as it might involve any charges of miscondirct against the plaintiff, be forbidden and that the letters be surrendered.

PLeld, that the action could not be maintained;

That the rights of the plaintiff were to be measured by the stipulation into which he had entered, which contained no provision requiring Crowell or his attorneys to bring the divorce suit to trial at any particular time;

That, under the stipulation, Crowell had a right to retain the letters until three days after a final disposition of the action for divorce, at whatever time that disposition might be reached.

Appeal by the plaintiff, Jacob R. Shipherd, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 9tli day of July, 1895, upon the decision of the court rendered at the Queens County Special Term dismissing the complaint upon the plaintiff’s opening.

D. C. Oalvim,, for the appellant.

MoKoon & luolcey, for the respondent.

This is a suit in equity, the main purpose of which was to prevent the defendant from prosecuting a pending action for divorce against his wife, so far as that action involved any charges of misconduct against the plaintiff herein, and also to secure the surrender to the plaintiff of certain letters written by him, which the defendant, Charles B. Crowell, intended to use in his divorce suit against his wife.

The complaint shows that Mr. Crowell had sued Mr. Shipherd for alienating Mrs. Crowell’s affections, in an action which was pending at the same time as the divorce suit already mentioned. Before the causes were reached for trial, the parties entered into a stipulation which provided, among other things, for the discontinuance of the suit which Mr. Crowell had brought against Mr. Shipherd, and contained the following paragraph in regard to the letters to which reference has already been made:

“ All letters written by defendant Shipherd, together with any wrappers containing them, which are the subject in part of the actions of Crowell v. Crowell and Crowell v. Shipherd, after the trial of the case of Crowell v. Crowell, shall be thereafter destroyed, in the presence of the attorneys for the parties, and all sncli letters, etc., shall be produced for such purpose.”

This provision was subsequently modified so as to require the letters, instead of being destroyed, to be delivered to Mr. Shipherd or his attorney within three days after judgment in the divorce Suit of Crowell v. Crowell, or within three days after the discontinuance of that suit, if it should be discontinued.

The plaintiff’s alleged grievance in the present case is that the Crowell divorce suit was not brought in good faith, and that no attempt has been made in good faith to bring it to trial; that the attorneys for Mr. Crowell have been persistently publishing through the newspapers and otherwise false and injurious statements concerning him and Mrs. Crowell; that when he consented to the stipulation concerning the letters he did so only upon the assurance of the attorneys for Mr. Crowell that the divorce suit would be brought to immediate trial and that his letters would be immediately surrendered.

All these statements, however, if true, do not give plaintiff any

p. 214

cause of action for such relief as he seeks in the case at har. His rights must be measured by the stipulation into which he entered, and that, so far as its contents are disclosed in the complaint, contains no provision binding Mr. Crowell or his attorneys to bring the divorce suit to trial at any particular time. So far as Mr. Shipherd’s. letters are concerned the necessary implication, from the language used in the stipulation, is that they are to remain in the hands of' Mr. Crowell until the lapse of three days after the final disposition of the action for divorce. In view of this portion of the agreement it is of no importance whether it be true or not, as alleged in the thirteenth subdivision of the complaint, that Mr. Crowell’s possession of those letters was unlawfully acquired in the first instance. His right to retain them was recognized by the stipulation.

The complaint was properly dismissed and the judgment appealed from should be affirmed, with costs.

All concurred, except Cullen, J., not sitting.

Judgment affirmed, with costs.