Hartigan v. Nagle

11 Misc. 449, 32 N.Y.S. 220, 65 N.Y. St. Rep. 419

• Court: City of New York Municipal Court
• Decided: February 15, 1895
• Status: Published

Opinion

Newburger, J.

In January, 1887, the plaintiff recovered ■a judgment by default against Patrick Eagle, since deceased.

In the month of December, 1893, an application, was made by the plaintiff for leave to issue execution, whereupon a motion was made in behalf of Ella A. Eagle> the widow of the defendant and administratrix of his estate, for an order wacating the judgment herein and making her a party defend■ant to the action.

Thereupon reference was ordered to take juroof of the facts-.

The referee subsequently filed his report, recommending the granting of the motion to vacate the judgment, which report was confirmed and this appeal taken from the order ■entered thereon.. ■ '

A party may in a proper case move to vacate and set aside a judgment, and where such judgment is obtained by default against a defendant who is now dead, and it appears that such judgment was entered by fraud and collusion, the motion to open such default and allow the administratrix to defend will be granted. Code, § 1284; Ward v. Town of Southfield, 102 N. Y. 287.

The referee properly excluded the question put. to the plaintiff to show whether she had loaned any money to decedent.

A careful reading of the printed case fails to disclose any testimony on the part of the administratrix as to any communication concerning the making and delivery of the note, •or the recovery of the judgment, and, therefore, the testimony ■ of the plaintiff did not come within the exception of section :.829 of the Code of Civil Procedure.

.. There are no exceptions to the referee’s report that would warrant us in (disturbing the order entered herein.

Order appealed from affirmed, with costs.

Ehrlich, Ch. J., and Fitzsimons, J., concur.

Order affirmed, with costs.