Schmohl v. Fusco

City of New York Municipal Court

Schmohl v. Fusco

13 N.Y.S. 583, 37 N.Y. St. Rep. 687, 1891 N.Y. Misc. LEXIS 1573

DecidedMarch 10, 1891

StatusPublished

This text of 13 N.Y.S. 583 (Schmohl v. Fusco) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schmohl v. Fusco, 13 N.Y.S. 583, 37 N.Y. St. Rep. 687, 1891 N.Y. Misc. LEXIS 1573 (N.Y. Super. Ct. 1891).

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Opinion

Ehrlich, C. J.

Technical pleas to defeat the collections of honest demands are not to be encouraged. Courts should not be astute in devising means for assisting debtors to deprive their creditors of their just dues, but should rather lend their aid to defeat any such scheme or intention. Two defendants were sued. Angelo Adam, one of them, demurred, and an order was subsequently made directing judgment on the demurrer in favor of the plaintiff. An order was next obtained severing the action, and permitting judgment to be entered against Adam on the demurrer, and directing that the action proceed as to Giuseppe Fusco, the other defendant, as if he had been sued alone. Judgment was thereupon entered against Adam, and Fusco sought leave to plead that judgment in bar to the further prosecution of the action against him. The motion was properly denied. The application was not in furtherance of justice, but an effort to defeat it, and the order should be affirmed on the merits. But, apart from this, it appears that since the argument below, and before the appeal was taken, the judgment against Adam has been vacated by an order entered on consent, signed by the plaintiff’s attorney and the attorney for Adam, of which the defendant Giuseppe Fusco had notice. The appeal by him was, therefore, unnecessarily taken, and, if the appellant succeeded upon it, he could acquire no beneficial purpose. The judgment he desires to plead in bar has been set aside, as if it had never existed, and the appellant is of necessity left to continue his defense on the merits. For these reasons we will, instead of affirming the order, as we otherwise would have done, dismiss the appeal taken, without costs. All concur.

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Ehrlich, C. J.

Technical pleas to defeat the collections of honest demands are not to be encouraged. Courts should not be astute in devising means for assisting debtors to deprive their creditors of their just dues, but should rather lend their aid to defeat any such scheme or intention. Two defendants were sued. Angelo Adam, one of them, demurred, and an order was subsequently made directing judgment on the demurrer in favor of the plaintiff. An order was next obtained severing the action, and permitting judgment to be entered against Adam on the demurrer, and directing that the action proceed as to Giuseppe Fusco, the other defendant, as if he had been sued alone. Judgment was thereupon entered against Adam, and Fusco sought leave to plead that judgment in bar to the further prosecution of the action against him. The motion was properly denied. The application was not in furtherance of justice, but an effort to defeat it, and the order should be affirmed on the merits. But, apart from this, it appears that since the argument below, and before the appeal was taken, the judgment against Adam has been vacated by an order entered on consent, signed by the plaintiff’s attorney and the attorney for Adam, of which the defendant Giuseppe Fusco had notice. The appeal by him was, therefore, unnecessarily taken, and, if the appellant succeeded upon it, he could acquire no beneficial purpose. The judgment he desires to plead in bar has been set aside, as if it had never existed, and the appellant is of necessity left to continue his defense on the merits. For these reasons we will, instead of affirming the order, as we otherwise would have done, dismiss the appeal taken, without costs. All concur.

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Bluebook (online)

13 N.Y.S. 583, 37 N.Y. St. Rep. 687, 1891 N.Y. Misc. LEXIS 1573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmohl-v-fusco-nynyccityct-1891.