Flagg v. Cooper — 3 N.Y. St. Rep. 529

Majority

p. 529

William L. Flagg, Resp’t, v. Henry P. Cooper, App’lt.

(New York Superior Court, General Term,

Filed November 10, 1886.)

Headnote

1. Default—Order granting leave to defend after—Conditions in.

Where an order grants leave to a defendant to defend, and provides that a judgment entered stand as security, but no execution issue thereon until the determination of the action, the conditions imposed by the order are binding upon a defendant who has accepted the favor granted by it.

2. Judgment—Subsequent judgment does not vacate.

A subsequent judgment does not vacate the original judgment.

Appeal from order denying defendant’s motion to set aside an execution issued by the plaintiff in this action.

The judgment entered by default July 3, 1883, was a final judgment within the provisions of section 1240 of the Code, and an execution on such judgment was regular.

The defendant applied to the court for leave to defend the action, and that application was granted, but the judgment as entered was not vacated, and as a condition for the favor granted it was provided “that the judgment stand as security, but fio execution to issue therein until after the determination of the action.”

The defendant having accepted the favor granted was bound by the conditions imposed, and on the determination against him of the defense interposed, under the provisions of the order the conditions upon which the leave was granted became binding upon him.

The subsequent judgment entered did not have the effect of vacating the original judgment. That stood under the terms of the order, and the period during which no execution was to issue having expired, we can see no reason why the judgment originally entered should not be enforced in the way provided by law.

It is not necessary to determine whether the judgment is a lien upon the property advertised for sale. If the judgment is not a lien upon such property no interest therein will pass under the sale, and the judgment and execution being regular, the plaintiffs had the right to enforce the judgment against all the property upon which it is a lien.

The defendant having accepted the leave to defend granted by the order,1 it is too late for him to insist that the terms upon which such leave was granted were irregular.

We think the order appealed from should be affirmed, with ten dollars costs and disbursements.