Magalhaes v. Magalhaes

254 A.D. 880, 5 N.Y.S.2d 43, 1938 N.Y. App. Div. LEXIS 8140

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1938
• Status: Published

Opinion

Appeals by defendant (a) from an order denying his motion to vacate and discharge of record a judgment entered against him on confession, and (b) from an order of reference and from the order resettling it. First order appealed from, denying motion to vacate judgment and discharge it of record, affirmed, with ten dollars costs and disbursements; single appeal from the order of reference and from the order resettling it dismissed, with ten dollars costs. Defendant failed to show facts satisfying the court at Special Term that any reason existed for vacating the judgment, and the court’s determination is manifestly sound. Any alleged deficiency in the statement of confession is not available to defendant. Section 541 of the Civil Practice Act is intended only to protect creditors of a defendant from judgments entered on confession by collusion. (Neusbaum v. Keim, 24 N. Y. 325, 327; Teel v. Yost, 128 id. 387, 402.) No appeal lies from an order of reference to hear and report (Luttenberger v. Alpert Woodworking Corp., 252 App. Div. 862), or from an order that has been resettled, as it is superseded by the order resettling it. (Rudin v. Hadrian Realty Co., Inc., 173 App. Div. 898.) Lazansky, P. J., Hagarty, Carswell, Davis and Taylor, JJ., concur.