Adams v. Kearney

2 E.D. Smith 42

• Court: New York Court of Common Pleas
• Decided: June 15, 1851
• Status: Published

Opinion

By the Court. Woodruff, J.

We are not able to discover, from the papers, the grounds upon which the order at special term was made. The plaintiff had recovered a judgment in the justice’s court, from which the defendant appealed to this court. Pending the appeal, the defendant met the plaintiff’s son, paid him the amount of the judgment below, took his receipt therefor, without payment of the costs on appeal; and the plaintiff’s counsel having afterwards obtained an affirmance of the judgment, with costs, and issued execution for such costs, the defendant applied to the special term, and obtained the order from which the present appeal is taken, setting aside the judgment of affirmance rendered by the general term, with all subsequent proceedings, &c.

Without considering, at present, how far it is proper or competent for a single judge, at special term, to set aside a judgment regularly taken at the general term, we are of opinion that the order appealed from was not warranted by the facts stated in the affidavits.

There was no proof that the plaintiff’s son had any authority to receive the money for his father, or settle the judgment. There was no evidence that the plaintiff had received the money.

It was obvious that the payment was a trick on the part of the debtor to avoid paying the costs of the appeal.

If the defendant supposed that the alleged payment furnished any reason for staying the proceedings in this court on the appeal, he should have appeared and obtained the proper order before judgment of affirmance was entered.

We think the order below was improvidently granted, and it should be reversed, with ten dollars costs.

Order reversed.