1 Barb. 311 | N.Y. Sup. Ct. | 1847
The warrant of attorney, and the endorsement upon it, taken together, constitute the agreement between the parties. It appears then, that the judgment to be entered up on the warrant of attorney, was intended to secure an indebtedness for goods to be sold on the 25th of August, the day of its execution, to the amount of $500, and also to secure a similar amount for goods thereafter to be sold. There was a further provision that, in case the plaintiff should deem himself insecure, he might issue execution for whatever might be due to him for principal and interest, and collect the same. The general expressions must be taken in connection with the particular provisions of the agreement, and they clearly mean, that the plaintiff might issue execution for whatever might be due, according to the terms of the agreement; that is, for the amounts which were intended' to be secured by the judgment. The plaintiff then had no claim under the said judgment for any indebtedness which had accrued previous to the time of executing the warrant of attorney.
But as to all goods sold on that day, or subsequently, and before the first of January succeeding, he had an undoubted right to issue his execution, provided he did not exceed the amount limited by the agreement. The fact that the goods sold by the plaintiff, and which constituted the consideration of the judgment, belonged to the partnership firm of which he was a member, can make no difference. The judgment given to him, if given to secure a partnership debt, would belong to the firm, and the plaintiff would hold it as trustee for them. And a satisfaction of the judgment would be a satisfaction of
It seems, however, from the affidavits read on the part of the plaintiff, that the original agreement between the parties was that the judgment should also secure the indebtedness of the defendant which had accrued before the first of August, and that it was by mistake that a different agreement was executed; and it is contended that this court, in the exercise of its equitable powers over judgments entered up on bond and warrant of attorney, can relieve against the mistake. Although this court will exercise a general equitable control over judgments of this nature, still, it has never done so to the extent claimed in this case.
But, inasmuch as the plaintiff’s affidavits, disclose a case in which the equity side of this court would, probably, give relief, it is proper that he should have an opportunity to make an application for that purpose.
The plaintiff in the judgment must therefore be stayed from any further proceedings under the execution, to collect the amount of indebtedness which accrued before the 25th of August last, or any part thereof, and he must pay the costs of this-motion; unless be files his bill within twenty days, for the purpose - of correcting the alleged mistake in the agreement. In which event, the judgment and execution, and the levy under it, shall remain as security for the payment of the indebtedness which accrued before the said 25th of August, until the final decision and decree in the suit in equity.