Cock v. Palmer — 24 N.Y. Super. Ct. 658

Majority

p. 658

James Cock, plaintiff, vs. Justus Palmer, defendant.

Headnote

An appeal from a judgment which has heen subsequently settled, and of which satisfaction has heen acknowledged, will not he heard by the court merely to protect the rights of the respondent’s attorney to costs. If the settlement of the judgment he a fraud on his rights, Ms remedy is by motion.

(Before Bosworth, Ch. J. and Moncrief and White, JJ.)

Heard May 9,1863;

decided May 16, 1863.

This was a motion to dismiss an appeal. The facts are stated in the opinion.

It appears that the parties to this action have settled the judgment appealed from, and that the plaintiff has acknowledged satisfaction of the judgment. It does not distinctly appear that the judgment has been satisfied of record, inasmuch as the paper read by the defendant as an affidavit made by him is not sworn to. If the defendant had not in fact sworn to it, the reading of it as an affidavit actually sworn to, is highly reprehensible.

The plaintiff’s attorney should not issue execution on a judgment satisfied of record, nor an appellate court hear an

p. 659

appeal from it, taken by the defeated party, when the attorney of the party acknowledging satisfaction is the only person asking for judgment on the appeal, and the opposite party objects to farther proceeding in the appeal, on the ground that the judgment is satisfied of record.

The- plaintiff’s attorney, if he thinks the settlement and discharge of the judgment is a fraud on his rights, should move to vacate the entry of satisfaction, as was done in Rooney v. Sec. Av. R. R. Co., ( 18 N. Y. Rep. 368 ;) or move for an order that thes defendant pay his costs, as in Read v. Dupper, (6 T. R. 361;) and see Barker v. St. Quintin, (12 M. & Wels. 441;) and Carpenter v. Sixth Av. R. R. Co., (1 Am. L. R. [N. S.] 410, 416 ; and note to the same, Id. 423, 4 , Remedies.)

The cause must be stricken from the calendar, because it appears the judgment has been settled, and satisfaction of it acknowledged ; and the plaintiff’s attorney be left to his motion to vacate the entry of satisfaction, and for leave to proceed in the action to collect his costs ; or to take such further course as he may be advised. This motion is granted without costs.