Albert v. Wender

19 A.D.2d 737, 242 N.Y.S.2d 905, 1963 N.Y. App. Div. LEXIS 3324

Opinion

In an action to recover upon a promissory note alleged to have been indorsed by tin-defendant, in which judgment was entered against her based on a confession alleged to have -been signed by her, the defendant appeals: (I) from an order of the Supreme Court, Nassau County, dated March 28, 1963, which denied her motion to vacate the judgment; and (2) from so much of an order of said court, made May 7, 1963, as, upon l-eargument, adhered to the original decision. Appeal from order of March 28, 1963 dismissed as academic; that order was superseded by the later order granting reargument. Order of May 7, 1963, insofar as appealed from, reversed, with $10 costs and disbursements to the defendant, and matter remitted to the Special Term for the purpose of taking-proof on the issue of whether defendant’s signature upon the confession was a forgery; and for further proceedings not inconsistent herewith. Defendant contends that she never signed the confession of judgment. A confession may be attacked 'by motion where the basis of the attack is that the signature to the confession is a forgery. If the affidavits are conflicting, proof should he taken and the motion should be decided on the basis of the evidence adduced; a plenary action is not necessary (King v. Shaw, 3 Johns. 142; Sehomaker v. Dean, 201 Pa. 439; Kaier v. O’Brien, 202 Pa. 153; Feltington v. liongetti, 337 111. App. 383; Livingstone, v. Repinan, 169 Ohio St. 109). Beldock, P. <L, Kleinfeld, Christ, Rabin and Hopkins, JJ., concur.