57 Misc. 2d 817 | N.Y. Sup. Ct. | 1968
This is a motion, referred from Queens County, to vacate an order of attachment on the ground that the complaint fails to state a cause of action.
Some years ago the plaintiff, a mason contractor, contracted to do the brick work on some multiple dwellings to be erected by the corporate defendant, 24 Eock Corporation, in Queens County. The individual defendants are the principals of the corporation.
When the buildings were completed, the exterior walls leaked, and 24 Eock Corp. sued the plaintiff, claiming breach of warranty and use of an improper mortar mix. A jury returned a verdict in favor of 24 Eock Corp. for the sum of $80,000, which, with interest, now amounts to over $94,000. A bond for $100,000 was posted and an appeal taken. The judgment was affirmed by the Appellate Division (26 A D 2d 772) and leave to go to the Court of Appeals was denied (18- 1ST T 2d 580). The Appellate Division has denied reargument (29 A D 2d 694) and Special Term has denied a new trial. 24 Eock Corp. has recovered summary judgment in an action on the undertaking against the bonding company, which is now on appeal.
This action is based on a charge of fraud committed by the defendants in procuring the above judgment by perjured testimony which grossly exaggerated the damages which, in fact, were no more than the $7,500 which was actually paid to repair the wall. The proceeds of the appeal bond itself are the subject of the present attachment.
Taking these charges at face value, as we must on this motion, the question is may such an action be maintained?
I conclude that it may not. It is the settled policy of the law not to allow the effectiveness of a judgment to be impeached in another lawsuit, even where perjury and fraud were used to procure it. The remedy for that lies exclusively in the lawsuit itself, for instance, by a motion for a new trial. Such an application was made in this case, but the Judge who entertained it saw fit to deny the motion, and that determination, too, has been affirmed by the Appellate Division. (29 A D 2d 660.)
Plaintiff herein seeks to bring itself into an exception to the above rule, to wit, a line of cases which allow a separate challenge
Under this rule, people occasionally may succeed in their deceptive practices but any other rule would lead to absolute chaos. The remedy would seem to lie in a proper case in a liberal consideration of the right to a new trial in the original action. That question is not before this court at this time and, therefore, the basis for it has not been developed by either side, but it is significant that the Judge who had it was not persuaded that plaintiff (defendant herein) had recovered a wrongful judgment.
Motion granted.