Kidd v. Curry — 36 N.Y. Sup. Ct. 215

Majority

p. 215

GEORGE W. KIDD, Respondent, v. WILLIAM CURRY, Appellant.

Headnote

Vacation of a judgment after it has been paid — remedies of the judgment debtor.

Where, after the amount due upon a judgment has been collected under an execution issued thereon, the judgment is vacated and set aside, the judgment-debtor may either apply for an order for the return of the money so paid, under section 1323 of the Code of Civil Procedure, or may bring an action to recover it.

Appeal from a judgment of the County Court of Kings county in favor of the plaintiff.

The defendant recovered a judgment on August 29,1878, against the plaintiff for $122.88, upon which he issued an fexecution and collected the sum of $182, being the whole amount due thereon, with poundage, etc. On June 20, 1879, this judgment was vacated and set aside. The plaintiff then, after demand, brought this action against the defendant and obtained a judgment for the amount so paid under the execution, with costs. From this last-named judgment the defendant appealed to the General Term.

E.* J. Morris, for the appellant.

T. J. & B. F. Tilney, for the respondent.

There is no basis for this appeal. The defendant obtained a judgment against the plaintiff and collected it by execution. The judgment was “ subsequently vacated and set aside.” The defendant therefore holds the plaintiff’s money without any right to retain the same. An action lies to enforce its repayment. (Clark v.

p. 216

Pinney, 6 Cow., 299 ; Sturges v. Allis, 10 Wend., 354 .) It does not even appear that a new trial was ordered. Upon an application for restitution by order, made to the court, equitable considerations may arise and conditions be put upon the restitution in reference to the safe keeping of money collected.

The money, upon a new trial, may .still belong to the creditor, but as against an action there is no legal defense.

The remedy is either by motion (Code C. P., § 1823) or by action. (Lott v. Swezey, 29 Barb., 88 .)

The judgment should be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.