Oetjen v. Fayen — 58 N.Y. St. Rep. 55

Majority

p. 55

Herman Oetjen, Resp’t, v. Henry F. Fayen, App’lt.

(New York Common Pleas, General Term,

Filed March 14,1894.)

Headnote

1. Judgment—Vacation.

When the papers have been served upon the defendant, his motion to set aside a judgment upon the ground that his oSer thereof, or consent

p. 56

thereto, was procured by false representations as to the claim made by the-complaint, is properly denied.

2. Same—Waiver.

The defendant, by consenting to a judgment for the whole amount, waives the objection that the credit as to part of the indebtedness has not. expired.

Appeal by defendant from an order of the general term of the-city court affirmed an order denying his motion to vacate the judgment against him or to reduce the amount thereof, and to vacate attachment issued in the action.

Gumbleton & Hottenboth, for app’lt; Foster, Hotaling & Klenke,. for resp’t.

The defendant swore that he had never been served with the summons, nor complaint, nor 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. No irregularities in the-affidavits were pointed out in the notice of motion as required by the rules.

The order is affirmed.