Schecker v. Woolsey — 72 N.Y. St. Rep. 631

Majority

p. 631

William H. Schecker, App’lt, v. Kate T. Woolsey et al., Resp’ts.

(Supreme Court. Appellate Division, Second Department,

Filed Feb’y 11, 1896.)

Headnote

I. Records—Removal from files.

Where, in an action to declare void a conveyance by a judgment debtor as to plaintiff’s judgment, there is a stipulation for judgment in plaintiff’s favor, unless the debtor makes a second payment by a specified time, a default of payment and a judgment as stipulated, and the debtor after-

p. 632

wards pays the debt and an order is made discontinuing the action and canceling the lis pendens, it is .error to order all the papers in the case ta he delivered to the grantee, on her application and affidavit that such stipulation was unauthorized by her and tended to discredit her defense, where they contained no aspersion on tier save that which it was necessary to charge in the complaint and which did not necessarily affect her character.

3. JUDSMENT— COBRECTTOTT.

Where an order, allowing defendant to remove all the papers from the. files, does not recite plaintiff's opposing affidavit, it should be resettled.

8. Same.

The granting of a motion made by the grantee in such case, to reform the original order byreciting in it plaintiff’s affidavit and by incorporating, in it a direction that the affidavit should not he filed, is error.

Action by William H. Schecker against Kate T. Woolsey and Edward J. Woolsey to declare a conveyance from defendant. Edward to defendant Kate void as to a, judgment in favor of plaintiff, and against defendant Edward J. Woolsey, in which there was a judgment for plaintiff. From three certain subsequent orders plaintiff appeals.

—The three orders of the special term from-which the appeals are taken were made in a single application. The plaintiff, a judgment creditor of the defendant Edward J. Woolsey, brought this action to declare a conveyance from that defendant to the defendant Kate T. Woolsey void as against his judgment. When the cause was brought on for trial, the defendant’s counsel entered into a stipulation for judgment in plaintiff’s favor, unless the defendant made a certain payment by a specified time. Default having been made in such payment, a decision was rendered on the stipulation, and the decision and the stipulation filed in the office of the clerk. Subsequently the defendant satisfied plaintiff’s claim, and an order was made discontinuing the action, and’canceling the lis pendens. Thereupon, the defendant, on-an affidavit that the stipulation was unauthorized by her, and tended to. cast discredit on her defense, applied for an order directing that all the papers in the action on file in the clerk’s office betaken therefrom, and be delivered to her. This application was granted against the opposition of the plaintiff, and is the first order appealed from. This order did not recite the plaintiff’s opposing affidavit. So the plaintiff moved to resettle it in this respect. This motion was denied, and the order denying the motion is the second order appealed from. After this the defendant moved to reform the original order by reciting it in the plaintiff’s affidavit, and also by incorporating therein a direction that the affidavit should not be filed. The order granting this motion is the third order appealed from.

Assuming the power of the court to remove its records from, the clerk’s office, for the purpose of destruction, it is apparent that, it is a power to be exercised with the greatest caution, and only in the most exceptional cases. Of course, affidavits- and documents not properly part of the records of the court, and filed by mistake, would properly be directed to be removed. So, also, the1

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court should not suffer its records to be used to publish libels, and scandulous accusations wholly irrevelant to the cause should be suppressed. But no such case is presented here. The documents sought to be removed were part of the regular records made in the action. They contained no aspersion on the defendant, save that which it was necessary to charge in the complaint, and that not necessarily affecting her character. The reason assigned as a ground for the removal is too trivial to justify discussion. But the dominant consideration is that the papers were entirely germane to the litigation, and contained nothing irrevelant thereto. In such a case the records should not be destroyed.

The three orders appealed from should be reversed, with $10 costs and disbursements, and the original motion denied, with $10 costs.