Romain v. Garth

5 Thomp. & Cook 361

• Court: New York Supreme Court
• Decided: January 15, 1875
• Status: Published

Opinion

Lawrence, J.

I am of opinion that the first motion was properly denied. It would be anomalous for the court on a mere motion in this action to adjudge that an entry, on its face duly made by the clerk of the county, on the docket of a judgment in arother action, that said judgment had been released, was void for the reason that the release was invalid or that the entry had been fraudulently made. The release cannot be attacked nor the entry avoided save in a direct proceeding or suit for that purpose.

I am, however, of the opinion that the second motion should have been granted. Although it appears that the attorney for the appellant knew of the existence of the release at the time this action was commenced, I do not think that the plaintiff should be precluded by the laches of his attorney from setting up in his complaint that the release was for any reason null and void, or that it was fraudulently made, and I do not think that so much time had elapsed before the motion was made as to justify the court in holding that the plaintiff should be barred from showing the invalidity of the release, if it is in fact invalid.

The court has the power to allow the amendment which is asked for, and on proper'terms it should be granted. Gray v. Brown, 15 How. 556; Code, § 173.

Upon payment of all the costs in the action, and disbursements - up to the present time, and costs of motion, the plaintiff may have leave to amend his complaint, as moved for.

On these conditions the second order appealed from should be reversed, without costs.

The first order appealed from is affirmed, with costs.

Ordered accordingly.