Opinion
May 3, 1911.
Countryman, Nellis Dubois [ Andrew J. Nellis of counsel], for the appellant Cohn.
Humboldt M. Schlesinger for the appellant Jennie Hein. Fletcher W. Battershall [ Danforth E. Ainsworth and Charles B. Sullivan of counsel], for the respondent.
We have examined the facts and are satisfied they well sustain the judgment. The plaintiff was not bound to elect whether he would pursue Jacob Cohn alone or Theresa Cohn. Theresa received Jacob's property and agreed to pay the plaintiff's debt, with interest, and the plaintiff could sue either or both. The propriety of the form of action is settled by our former decision. (See 118 App. Div. 913.) The record establishes that the present defendants have certain property which originally passed from Jacob Cohn to Theresa Cohn as a consideration for her agreement to pay plaintiff's debt, and that there is with the Albany county treasurer certain surplus moneys which are the proceeds of some of the real estate conveyed by Jacob to Theresa. The parties who are beneficially interested in said property and moneys take them by representation from Theresa Cohn, and equity may well consider them charged with the payment of plaintiff's claim. A court of equity does not find it necessary to name its remedies or the kind of relief which it is administering. It is sufficient to call it equitable relief. Under all the circumstances of this case it is equitable as between the parties to this action that the property and moneys in question should be charged with the plaintiff's debt. The judgment is, therefore, affirmed, with costs.
All concurred; SMITH, P.J., in result.
Judgment unanimously affirmed, with costs.