Clute v. Emmerich

6 N.Y. St. Rep. 865

Opinion

Per Curiam.

—The order vacating the judgment in the action of ejectment was made upon the production of a receipt for the costs therein and a release therefrom duly acknowledged by the plaintiff.

It is not pretended by the plaintiff’s attorney that this receipt was obtained without his knowledge and consent, but that it was obtained from him by fraud.

At the time the receipt and release was given the attorney received $200 in money, and a note of Mr William G. McCrea for $347.47, the balance of the ■costs.

It is not pretended that there has been any offer to refund the money received, or to return the note given upon the procurement of the release.

_ The plaintiff cannot keep the consideration for the release, and at the same time claim to_rescind, which seems to be that which is sought upon this motion.

The disposition of the motion was therefore correct, and the order appealed from must be affirmed, with costs.