Wheeler v. Kirk

Appellate Division of the Supreme Court of New York

Wheeler v. Kirk

254 A.D. 872, 5 N.Y.S.2d 67, 1938 N.Y. App. Div. LEXIS 8117

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

DecidedJune 6, 1938

StatusPublished

This text of 254 A.D. 872 (Wheeler v. Kirk) 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

Wheeler v. Kirk, 254 A.D. 872, 5 N.Y.S.2d 67, 1938 N.Y. App. Div. LEXIS 8117 (N.Y. Ct. App. 1938).

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Opinion

Order denying the motion of the judgment creditor for an execution against the person of the individual judgment debtor modified by adding at the end thereof the words, “ with leave to renew the motion if so advised;” and as so modified affirmed, with ten dollars costs'and disbursements to respondent. It is the claim of the appellant that the judgment rendered against this defendant was based on fraud. There were no findings, and the judgment indicates nothing as to the nature of the action. The complaint, somewhat ineptly drawn, may be said to set forth a cause of action in fraud. The answers of the defendants deny such allegations. On the motion the affidavits were not enlightening or conclusive on the question. The affidavits submitted by the individual judgment debtor referred to the stenographer’s minutes taken on the trial, quoted therefrom and stated that they would be exhibited to the court on the motion. The order does not recite these minutes; and they are not printed or submitted on this appeal. The appellant’s counsel said on the argument that it was impossible for him to obtain a copy of the minutes. He should have required these minutes, as well as all other papers used on the motion, to be filed. As the record stands, it is impossible to determine whether the judgment was rendered on the basis of fraud or otherwise. Lazansky, P. J., Carswell, Davis and Taylor, JJ., concur; Hagarty, J., dissents and votes to affirm without modification.

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Order denying the motion of the judgment creditor for an execution against the person of the individual judgment debtor modified by adding at the end thereof the words, “ with leave to renew the motion if so advised;” and as so modified affirmed, with ten dollars costs'and disbursements to respondent. It is the claim of the appellant that the judgment rendered against this defendant was based on fraud. There were no findings, and the judgment indicates nothing as to the nature of the action. The complaint, somewhat ineptly drawn, may be said to set forth a cause of action in fraud. The answers of the defendants deny such allegations. On the motion the affidavits were not enlightening or conclusive on the question. The affidavits submitted by the individual judgment debtor referred to the stenographer’s minutes taken on the trial, quoted therefrom and stated that they would be exhibited to the court on the motion. The order does not recite these minutes; and they are not printed or submitted on this appeal. The appellant’s counsel said on the argument that it was impossible for him to obtain a copy of the minutes. He should have required these minutes, as well as all other papers used on the motion, to be filed. As the record stands, it is impossible to determine whether the judgment was rendered on the basis of fraud or otherwise. Lazansky, P. J., Carswell, Davis and Taylor, JJ., concur; Hagarty, J., dissents and votes to affirm without modification.

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Bluebook (online)

254 A.D. 872, 5 N.Y.S.2d 67, 1938 N.Y. App. Div. LEXIS 8117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-kirk-nyappdiv-1938.