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Cobb v. Edson

84 N.Y.S. 916 Court N.Y. App. Term English

Delivered by BISCHOFF, J.

Contents

Majority

p. 916
COBB et al. v. EDSON.
(Supreme Court, Appellate Term.
October, 1903.)

Headnote

1. Principal and Agent—Ratification.
A judgment creditor placed his claim, then in judgment, in the hands of a collection agency, which compromised it by an agreement, which the judgment debtor fully performed. About five years later the creditor, learning of the settlement, demanded of and received from the agency the sum in its hands derived solely from the settlement, and not otherwise accounted for by it. Held that, conceding the want of the agency to compromise the claim, the judgment creditor ratified its act.
2. Supplementary Proceedings—Satisfaction of Judgment—Dismissal.
Under Code Civ. Proc. § 2454, providing that, where it appears that a judgment has been satisfied, the judgment creditor’s supplementary proceedings may be dismissed, supplementary proceedings will be dismissed on motion of the judgment debtor, where there is nothing to collect under the judgment.
¶ 2. See Execution, vol. 21, Cent. Dig. § 1143.
p. 917
Appeal from City Court of New York, Special Term.
Supplementary proceedings by Albert W. Cobb and another against David O. Edson. From an order denying a motion to vacate an order for the examination of defendant in supplementary proceedings, he appeals. Reversed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
Charles E. Mahony, for appellant.
Henry L- Maxson, for respondents.

Upon a practical concession of facts it appears that the judgment creditors placed the claim (then in judgment) in the hands of a collection agency; that the latter compromised it by agreement of settlement upon additional consideration (Jaffray v. Davis, 124 N. Y. 164 , 26 N. E. 351 , 11 L. R. A. 710 ), which agreement was fully performed by the debtor; and that some five years afterward the creditors, learning of the settlement, demanded of and received from the agency the sum in its hands derived solely from the settlement, and not otherwise accounted for as between the principal and agent. Granting that the agency to collect did not import an authority to compromise, there was here a distinct ratification within familiar principles. Hyatt v. Clark, 118 N. Y. 563 , 23 N. E. 891 ; Bliven v. Lydecker, 130 N. Y. 102 , 28 N. E. 625 . There is nothing to collect under this judgment, and the authorities which hold that the invalidity of a judgment cannot be averred, as an original question, in supplementary proceedings, have no application. Satisfaction of the claim in judgment calls for the dismissal.of the proceedings. Code Civ. Proc. § 2454.

The appellant was entitled to the order which he sought, and the order appealed from is therefore reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

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