Austin v. Byrnes

Headnote

Motion to vacate order for examination in proceedings supplementary to execution on ground that judgment is paid, when not granted, but moving party remitted to motion in the aetion to have judgment declared satisfied.

Appeal from an order denying motion to vacate proceedings supplementary to execution.

The Court at General Term said :— The judgment upon which the order to examine the defendant was granted, is regular, unsatisfied of record, and sufficients to sustain the order. If there is anything due or unpaid on the judgment, the motion to vacate the order was ■properly denied. The facts upon which the defendant claims the judgment was paid, or satisfied, are either denied by the assignee of the judgment, or their legal effect disputed, and whether the whole judgment is or is not satisfied depends on the right to set off a claim that the defendant has against the person who paid a portion of the judgment and for whose benefit it was assigned. Under the circumstances we think the proper remedy for the defendant is by motion in the action to have the judgment declared satisfied of record. On

such a motion a reference can be ordered if necessary to take proof of the facts, and on such reference the question of the amount if any, that remains unpaid can be much more satisfactorily determined than on the papers before us, and the order on that motion can, if the motion is granted, make proper provision as to any set off required.”