Wood v. Mitchell

New York Supreme Court

Wood v. Mitchell

14 N.Y.S. 7, 26 Abb. N. Cas. 129

CourtNew York Supreme Court

DecidedNovember 15, 1890

StatusPublished

Cited by1 cases

This text of 14 N.Y.S. 7 (Wood v. Mitchell) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wood v. Mitchell, 14 N.Y.S. 7, 26 Abb. N. Cas. 129 (N.Y. Super. Ct. 1890).

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Opinion

Barrett, J.

I cannot accede to the proposition that confessions of judgment, given for honest debts, are to be set aside merely because they were so given after the plaintiff had extended the defendants’ time to answer in the action then pending. Mitchell had a right to prefer these creditors, and, so long as they were not parties to a fraud, their vested rights cannot be taken from them. But it was not a fraud, even upon Mitchell’s part, to pay or secure his honest debts, and, though he obtained the extension for that specific purpose, the confessions were but the exercise of a legal right. Whether the time necessary to prepare and execute the confessions was obtained by judicial order, by consent, or by interposing a frivolous answer is immaterial. There [8]*8■was here no agreement, express or implied, that, pending the extended time, the existing status should not be changed by any act of the defendant. The «ose, therefore, is not analogous to Jaques v. Greenwood, 12 Abb. Pr. 232. It is more like Hauselt v. Vilmar, 2 Abb. N. C. 222, affirmed 76 N. Y. 630, where Jaques v. Greenwood was analyzed, and shown to rest upon the fact «f an express agreement that no assignment would be made pending the stay of proceedings. There judgment had actually been entered, and, by means of the stay secured upon the agreement that no assignment would be made, the creditor was deprived of the benefit of a levy.

The other point made upon the plaintiff’s behalf is even less tenable. There is nothing whatever in the facts testified to by the plaintiff to warrant ■his claim of an equitable lien upon or assignment of any portion of what was «oming to Mitchell from the United States. There was nothing in the nature of an appropriation of the funds, nothing which would have authorized the United States to pay directly to the plaintiff. There was no assignment, pledge, or order. Mitchell merely promised to pay when he was in funds from his contract with the government, and this promise was purely personal. There should be judgment for the defendants, dismissing the complaint upon the merits, with costs to the defendants Patterson Bros', Theodore Smith, ¡and Henry Smith; jointly, to the defendants Hobby and Doody, and to the defendant E. B. James.

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Barrett, J.

I cannot accede to the proposition that confessions of judgment, given for honest debts, are to be set aside merely because they were so given after the plaintiff had extended the defendants’ time to answer in the action then pending. Mitchell had a right to prefer these creditors, and, so long as they were not parties to a fraud, their vested rights cannot be taken from them. But it was not a fraud, even upon Mitchell’s part, to pay or secure his honest debts, and, though he obtained the extension for that specific purpose, the confessions were but the exercise of a legal right. Whether the time necessary to prepare and execute the confessions was obtained by judicial order, by consent, or by interposing a frivolous answer is immaterial. There [8]*8■was here no agreement, express or implied, that, pending the extended time, the existing status should not be changed by any act of the defendant. The «ose, therefore, is not analogous to Jaques v. Greenwood, 12 Abb. Pr. 232. It is more like Hauselt v. Vilmar, 2 Abb. N. C. 222, affirmed 76 N. Y. 630, where Jaques v. Greenwood was analyzed, and shown to rest upon the fact «f an express agreement that no assignment would be made pending the stay of proceedings. There judgment had actually been entered, and, by means of the stay secured upon the agreement that no assignment would be made, the creditor was deprived of the benefit of a levy.

The other point made upon the plaintiff’s behalf is even less tenable. There is nothing whatever in the facts testified to by the plaintiff to warrant ■his claim of an equitable lien upon or assignment of any portion of what was «oming to Mitchell from the United States. There was nothing in the nature of an appropriation of the funds, nothing which would have authorized the United States to pay directly to the plaintiff. There was no assignment, pledge, or order. Mitchell merely promised to pay when he was in funds from his contract with the government, and this promise was purely personal. There should be judgment for the defendants, dismissing the complaint upon the merits, with costs to the defendants Patterson Bros', Theodore Smith, ¡and Henry Smith; jointly, to the defendants Hobby and Doody, and to the defendant E. B. James.

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Bluebook (online)

14 N.Y.S. 7, 26 Abb. N. Cas. 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-mitchell-nysupct-1890.

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