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Graef v. Bernard

7 Misc. 246 Court N.Y. City Ct. English

Delivered by Van Wyck, J.

Contents

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p. 246
Walter H. Graef, Respondent, v. Henry O. Bernard, Appellant.
(City Court of New York—General Term,
February, 1894.)

Headnote

The court has power, in its discretion, on the application of a plaintiff, to set aside a judgment entered in his favor.
An order granting such an application is not an abuse of discretion where it appears that the defendant has executed an assignment for. creditors, and that such judgment is a bar to an action in another state in which defendant’s property in such state has been attached.
Appeal by defendant from order made on plaintiffs own motion to vacate judgment entered in Ms favor against defendant.
JBlmmenstiel ds Hirsoh, for respondent.
E. A. Monfort, for appellant.

The plaintiff moved to vacate a judgment entered by him against defendant, and the record shows that the defendant, resident of this city, had made a general assignment for the benefit of his creditors, but that plaintiff, finding property belonging to him in Massachusetts, commenced action there upon the same cause, and attached the defendant’s property there on the same day that this action was commenced. It seems that the judgment herein would bar his recovery in the action there, and with it would, of course, fall his rights under the attachment, and hence his anplication to vacate his judgment here, which was granted. The appellant cites Foote v. Lathrop, 41 N. Y. 358 , as holding, “ When a judgment has once been regularly entered, no party has .a legal right to demand upon motion to the court that it Be set aside.” Although in that case the application was made by a defendant against whom the judgment was. entered, still the rule there laid down is true when the application, as here, is made by a party who has entered a judgment in his own favor, for in neither case has the party a legal right to demand, but can only appeal to the sound discretion of the court for

p. 247
relief. The granting of plaintiff’s application to vacate his own judgment was within the power of the court, and was not an abuse of its discretionary power. The power of the court to vacate a judgment entered by plaintiff in his favor upon his own application is undoubted. Hatch v. Central Nat. Bank, 78 N. Y. 487 . There the plaintiff had entered judgment against the bank for $4,000, which the bank had paid, and the judgment was by plaintiff satisfied of record, and yet the plaintiff’s application to vacate this judgment was granted with leave to serve an amended complaint setting up an additional cause of action. And in Dietz v. Farish, 43 N. Y. Super. Ct. 87 , the defendant’s motion to vacate taxation of costs at his instance was granted in order to enable him to move for an extra allowance, which latter motion in that court must be made before final costs are adjusted. The order appealed from is affirmed, with ten dollars costs.

Ehrlich, Oh., J., and Fitzsimons, J., concur.

Order affirmed, with ten dollars costs.

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