Majority
p. 737Thomas Wheeler, Pl’ff, v. William Emmeluth, Def’t. (Supreme Court, General Term, Second Department, Filed December 9, 1889.)
Headnote
Judgment—Vacating.While it is irregular to enter an order vacating a judgment without notice to the owner of such judgment, yet when such owner has had opportunity to he heard on his motion to vacate such order and has not shown that he was prejudiced thereby, or that the order was not right, it will be allowed to stand.
Appeal by Obed Wheeler, administrator of Thomas Wheeler, from an order denying motion to vacate an order cancelling and discharging of record two judgments in favor of plaintiff against ■defendant.
The order cancelling the judgments was based on defendant’s discharge as an insolvent and was granted without notice.
The judgments were recovered in 1876 and 1877. Thomas Wheeler, the plaintiff, died in 1884. Defendant was discharged as an insolvent September 30, 1885. The order cancelling the judgments was granted June 8, 1889.
The motion to vacate such order was made on an affidavit which stated only that the administrator was the owner of the judgments and that no notice of application for such order was served on him nor did he consent thereto.
Mwhael J. Scanlan, for app’lt; Jacob Levy, for resp’fc
It was undoubtedly irregular to enter an order without notice to the owner of the judgments, but the owner had an opportunity to be heard upon the merits when he made his motion to vacate the order and no fact was proved or reason suggested to show that the order as entered was not right.
So far as appears precisely such an order would have to be again entered in case it was set aside for the irregularity complained of. The plaintiff should have shown upon his motion to vacate the order that he had been prejudiced by the entry of the order without notice. Under all the circumstances we think the order should stand.
Order affirmed, but without costs.
Barhard, P. J., concurs; Dykman, J., not sitting.