Oetjen v. Fayen — 27 N.Y.S. 978

Majority

p. 978

(7 Misc. Rep. 496.)

OETJEN v. FAYEN.

(Common Pleas of New York City and County, General Term.

March 14, 1894.)

Headnote

Opening Judgment—False Representations.

A motion to set aside a judgment by consent on the grouiid that defendant’s consent was procured by false representations as to the claim made by the complaint is properly denied where defendant was served with a copy of the complaint.

Appeal from city court., general term.

Action by Herman Oetjen against Henry F. Fayen. From an order of the city court (25 H. Y. Supp. 1151) affirming an order denying defendant’s motion to vacate a judgment against him or to reduce the amount thereof, and to vacate an attachment, defendant appeals. Affirmed.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ.

G-umbleton & Hottenroth, for appellant.

Forster, Hotaling & Klenlce, for respondent.

The defendant swore that he had never been served with the summons or complaint or with the affidavits upon attachment, but he was contradicted by at least three witnesses, ■and we cannot interfere with the conclusion of the city court upon a question of fact so presented. The motion to set. aside the judgment upon the ground that the defendant’s offer thereof, or consent thereto, was procured by false representations as to the claim made by the complaint, was properly denied, since, as he had been served with the papers, he had the means at hand of discovering the falsity of the representation, and of ascertaining what he was sued for. It also appears that the judgment was entered for no greater sum than he owed, if the time of credit had not expired. As to a part of the indebtedness the credit had not expired, but he could waive that objection, and he did so by consenting to a judgment for the whole amount. It does appear that he overlooked the fact that a credit of $20 was not allowed him, but, as the judgment was immediately satisfied, he was not injured. The motion to vacate the attachment upon the merits was made upon the facts, and, as there was sufficient evidence to sustain the finding, the decision will not be disturbed. Ho irregularities in the affidavits were pointed out in the notice of motion, as required by the rules. The order is affirmed.