20 How. Pr. 86 | New York Court of Common Pleas | 1860
The motion made in these cases, is to vacate the several judgments rendered in favor of the plaintiffs, on the ground of collusion or fraud, or for certain irregularities alleged to exist, by the defendants. It is admitted that these judgments were rendered by this court, after a regular and fair trial, at which both parties were represented. It has been repeatedly decided by the court of common pleas, that this court cannot open judgments rendered by it, unless the same were obtained by default. But it is urged, on the part of the defendants, that the fifth section of the tax levy act, gives this court authority, as
The comptroller then made a motion in each case in the common pleas, that the plaintiffs be enjoined from enforcing their judgments.
Wm. Curtis Noyes, for the motion, argued:
1. That the court has power to grant relief, as a court of equity, and will always interfere on proper grounds, and forever enjoin the party obtaining the judgment from proceeding thereon. (Floyd agt. Jayne, 6 Johns. Ch. R., 479 ; Bissell agt. Bozman, 2 Dev. Ch. 160; Livingston agt. Hubbs, 2 Johns. Ch. 512; 2 Paige, 317; 2 Root R. 109 ; 20 Johns. R., 294; 16 Wend., 537; 4 Johns., 191; Graham’s Pr., 450-1, 2d ed.; 10 Bing., 24.)
G-eo. E. Thompson, opposed, argued :
1. The relief sought for by defendants cannot be obtained on a motion; the proper way is by filing a bill for that purpose. (Moses agt. Macfarlane, 2 Burr., 1005; Greenleaf’s Over. Cas., (ed. ’56,) 340; Wright agt. Miller, 4 Seld., 9.)
2. If this court has no power to open the judgments on a motion, it has no power, because it happens to be a court of equity jurisdiction, to enjoin the prosecution of the judgments on a motion.
3. This motion is made by the comptroller under the fifth section of the tax levy act of 1859. That section gives him power only, when he has reason to believe a
The section of the act of 1859 is as follows:
“ Section 5.—Whenever the comptroller of the said city shall have reason to believe that any judgments now of record against the mayor, aldermen, and commonalty of the city of New York, or which may hereafter be obtained against them shall have been obtained by collusion, or founded in fraud, he is hereby authorized and required to take all proper and necessary means to open and reverse the same, and to use the name of the said mayor, aldermen, and commonalty, and to employ counsel for such purpose.”
The other facts of the case appear in the opinion of the court.
Judge Maynard has decided upon the application made to him, that he has no power to open the judgment, and I think there can be no question as to the correctness of that decision. The fifth section of the act of 1859 for raising money by tax, (Laws of 1859, p. 112'7,) merely authorizes the comptroller to take all proper and necessary means to open and reverse judgments obtained against the city by collusion, or which are founded in fraud. The marine court, when the act of 1859 was passed, had no power to open a judgment unless it was obtained by default, nor to reverse one except upon an appeal to the general term of that court; and there is certainly nothing in the clause quoted from that act giving the marine court any such power. By the filing of a transcript of the judgment with the county clerk, it became, for the purpose of enforcing it against both real and personal property, a judgment of this court, and execution thereafter could issue only out of this court. (Sholtz agt. Judge of Yates County, 2 Cow., 506.) The Code declares that it shall, when the transcript is docketed, have the same effect as a lien, and
The judgment of the court below still stands, and the legislature have not indicated how, or in what way, the cause could be heard again. By the act of 1853, specific authority is given to the marine court to open judgments obtained by default, showing very clearly that the legislature intended, when the discretionary power of opening a judgment was to be exercised, that it should be exercised in the court where the previous proceedings had been had. We understand the amendment of 1851, therefore, as meaning nothing more than that the judgment is to be deemed a judgment of this court, simply for the purpose of being enforced against both real as well as personal property, which may have been thought necessary to prevent any question arising as to the validity of titles to real estate derived from sales made under such judgments. We undoubtedly have control over it, as we necessarily possess the power of staying proceedings upon the execution, and there is sufficient in the affidavit of the comptroller to invoke the exercise of our discretionary power. But the defendant denies that there has been either collusion or fraud, and swears that he rendered the services for which judgment has been obtained. If we were, as requested, to
The other three cases being in all respects like this, the same disposition is made of the motion in those suits.