Cock v. Palmer

19 Abb. Pr. 372, 1 Rob. 658

Opinion

By the Court

Footnotes

•

*—Bosworth, Ch. J.

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 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 further proceedings on the appeal, on the ground that the judgment is satisfied of record. '

The plaintiffs attorney, if he thinks the settlement and discharge of the judgment are a fraud on his rights, should move to vacate the entry of satisfaction, as was done in Rooney a. The Second Avenue R. R. Co. (18 N. Y., 368), or move for an order that the defendant pay his costs, as in Reade a. Dupper (6 T. R., 361); and see Backer a. St. Quintin (12 Mees & Welsby), and Carpenter a. Sixth Avenue R. R. Co. (1 Am. L. R., N. S., 415, 416), and note to the same (Ib., 423, 4, Remedies.)

The cause must be stricken from the calendar, because it appears that 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 ke may be advised. •

This motion is granted, without costs.

Present, Bosworth, Ch. J., and Moncrief and White, JJ.