General Payment Co. v. Elliott

Appellate Division of the Supreme Court of New York

General Payment Co. v. Elliott

7 A.D.2d 919, 183 N.Y.S.2d 400, 1959 N.Y. App. Div. LEXIS 9958

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 9, 1959

StatusPublished

This text of 7 A.D.2d 919 (General Payment Co. v. Elliott) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

General Payment Co. v. Elliott, 7 A.D.2d 919, 183 N.Y.S.2d 400, 1959 N.Y. App. Div. LEXIS 9958 (N.Y. Ct. App. 1959).

Pincite

Opinion

Appeal from an order made upon summary application after judgment, (1) directing appellant, upon receipt of payment of $20 from respondents, to execute a partial satisfaction of judgment, (2) discharging the judgment insofar as it affects respondents, and (3) vacating a third-party subpoena in supplementary proceedings. Judgment was entered on March 21, 1956 in favor of the appellant and against respondents and defendants Burckhardt and Weyhraueh for $2,920.21. Entry of judgment was preceded by a stipulation executed by the attorney for appellant on the one hand and the attorney for respondents and defendant Weyhraueh on the other, wherein, in addition to consenting to the entry of judgment in .the above-stated amount, the respondents agreed to pay appellant $1,000, payable $500 upon the signing of the stipulation and $5 a week until the total of $1,100 had been paid, and defendant Weyhraueh agreed to pay appellant $1,000, payable $5 upon the signing of the stipulation and $5 a week until the total of $1,000 had been paid. It was further agreed that “ Provided the defendants shall faithfully and promptly pay the aforesaid sum of Two Thousand ($2,000.00) Dollars in the manner above provided” appellant would execute and deliver a satisfaction of judgment to the respondents and defendant Weyhraueh, “but upon default in any of said payments, plaintiff shall have the right to apply any and all payments theretofore received in partial satisfaction of the aforesaid judgment, and said judgment shall thereafter be enforceable for the full amount thereof less credit for such partial payment or payments.” Respondents made payments pursuant to the terms of the stipulation until $980 had been paid, and thereafter defaulted. Some months later their -tender of $20 for the final four payments was refused, and appellant gave notice that it elected to declare respondents in default under the terms of the stipulation, demanding payment of the entire amount of the judgment, less credit for the payments already made. In the meantime, appellant had agreed with defendant Weyhraueh to accept $500 in satisfaction of his part of the obligation, appellant expressly reserving all rights against the codefendants. Thereafter the instant application was made, and the order appealed from was entered. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. We are unable [920]*920to agree with the conclusion of the learned Special Term as to the import of the stipulation. Under its clear and unambiguous terms appellant had the right to declare the full amount of the judgment due upon default in any payments thereunder. No proof was offered to excuse or justify respondents’ default in making the last four weekly payments. It was therefore error to grant the motion. Nolan, P. J., Wenzel, Beldoek, Murphy and Ughetta, JJ., concur. [13 Misc 2d 296.]

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Appeal from an order made upon summary application after judgment, (1) directing appellant, upon receipt of payment of $20 from respondents, to execute a partial satisfaction of judgment, (2) discharging the judgment insofar as it affects respondents, and (3) vacating a third-party subpoena in supplementary proceedings. Judgment was entered on March 21, 1956 in favor of the appellant and against respondents and defendants Burckhardt and Weyhraueh for $2,920.21. Entry of judgment was preceded by a stipulation executed by the attorney for appellant on the one hand and the attorney for respondents and defendant Weyhraueh on the other, wherein, in addition to consenting to the entry of judgment in .the above-stated amount, the respondents agreed to pay appellant $1,000, payable $500 upon the signing of the stipulation and $5 a week until the total of $1,100 had been paid, and defendant Weyhraueh agreed to pay appellant $1,000, payable $5 upon the signing of the stipulation and $5 a week until the total of $1,000 had been paid. It was further agreed that “ Provided the defendants shall faithfully and promptly pay the aforesaid sum of Two Thousand ($2,000.00) Dollars in the manner above provided” appellant would execute and deliver a satisfaction of judgment to the respondents and defendant Weyhraueh, “but upon default in any of said payments, plaintiff shall have the right to apply any and all payments theretofore received in partial satisfaction of the aforesaid judgment, and said judgment shall thereafter be enforceable for the full amount thereof less credit for such partial payment or payments.” Respondents made payments pursuant to the terms of the stipulation until $980 had been paid, and thereafter defaulted. Some months later their -tender of $20 for the final four payments was refused, and appellant gave notice that it elected to declare respondents in default under the terms of the stipulation, demanding payment of the entire amount of the judgment, less credit for the payments already made. In the meantime, appellant had agreed with defendant Weyhraueh to accept $500 in satisfaction of his part of the obligation, appellant expressly reserving all rights against the codefendants. Thereafter the instant application was made, and the order appealed from was entered. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. We are unable [920]*920to agree with the conclusion of the learned Special Term as to the import of the stipulation. Under its clear and unambiguous terms appellant had the right to declare the full amount of the judgment due upon default in any payments thereunder. No proof was offered to excuse or justify respondents’ default in making the last four weekly payments. It was therefore error to grant the motion. Nolan, P. J., Wenzel, Beldoek, Murphy and Ughetta, JJ., concur. [13 Misc 2d 296.]

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Bluebook (online)

7 A.D.2d 919, 183 N.Y.S.2d 400, 1959 N.Y. App. Div. LEXIS 9958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-payment-co-v-elliott-nyappdiv-1959.

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