7 N.Y.S. 281 | N.Y. Sup. Ct. | 1889
We think that the defendant did not show a case entitling"
him to have the judgment entered in this action vacated. That judgment-was entered upon his consent. His daughter, Mrs. Watson, had brought ejectment against the plaintiff’s grantees, alleging that the will under which the plaintiff claimed title was void. She succeeded in that action at circuit,- and an appeal was taken to the general term. Pending that appeal this action was instituted to establish the will. Negotiations were had for the settlement of the daughter’s claim. When the time for the settlement of the-daughter’s claim arrived, the plaintiff refused to consummate the settlement unless the defendant Carr would consent to the entry of judgment against him in this action. Accordingly the daughter’s husband obtained from defendant such consent, stating that the counsel were of opinion that he had no-interest in the property. He now seeks to avoid that consent on the ground that such advice was wrong. Assuming that the defendant had a right of curtesy in the property in case the will of the grandfather was void, the-opinion given by the counsel, though erroneous, was not necessarily dishonest or fraudulent. The daughter’s ease had been once at the general term, on appeal from an adverse judgment, and she had finally recovered at the circuit-without the point that the father had his curtesy being raised,—a point which, if well founded, would have been fatal to her action. That there was a possibility of such claim was apparent, for Carr was made a party to this action-to bar any such claim. The plaintiff’s counsel made it a condition of the settlement that the defendant’s claim, if any, should be barred by his consent to-the judgment. The nature and effect of the consent was understood by the defendant, and, though he was told he had no valid claim, he must have been aware that the only object of the consent was to cut off the possibility of a-claim. On this consent the plaintiff paid for the daughter’s interest.» The-plaintiff and defendant dealt at arms-Iength. While there are intimations of collusion between the defendants’ attorney and the plaintiff, there are no-facts shown to prove such averments, and they are explicitly denied by the parties charged. If such, however, be the fact, the defendant can avoid the judgment for fraud in a direct action brought for that purpose; but, in the absence of proof of fraud on the plaintiff’s part, he should not be deprived of the benefits of his settlement; certainly not without an offer to restore to-him what he has paid on account of that settlement.
It is objected that, as the court of appeals has held that this' action will not lie,
