100 Misc. 601 | N.Y. Sup. Ct. | 1917
This action was brought by the plaintiff in ejectment to recover from the defendant certain
In a similar action between these parties affecting lands in Essex county, a judgment entered on a similar agreement was, on plaintiff’s motion, set aside and vacated on the ground that the forest, fish and game commissioner had no authority to enter into the agreement and that it did not bind the state. The Court
It is urged on behalf of the defendant that as the judgment is void it should be vacated; that it does not bind either party; that a judgment entered under a similar agreement having been vacated the defendant is entitled to the same relief as that accorded the plaintiff in the other action in which the parties herein were parties.
While the judgment entered pursuant to the agreement is void and cannot be used as evidence for or against either party, yet the question presents itself whether the defendant having accepted the provisions of the agreement giving it. the right to remove the timber from the land may now have the judgment vacated. 23 Cyc. 897. The parties stand in different situations before the court on this application. The judgment is void as declared by the Court of Appeals in the Santa Clara Lumber Co. case as to each party and does not estop either party from questioning it when it is sought to assert a right under it. But the position of the parties is different when they ask for relief such as.is now sought. On behalf of the defendant, the judgment was entered by authority and it has taken the fruits of such judgment. It may not now be heard to ask to have the agreement and judgment vacated under which it acted and had authority to enter into.
Motion denied, with costs.