Williams v. Hernon

16 Abb. Pr. 173 | N.Y. Sup. Ct. | 1863

Barnard, J.

The rights of parties to an action are to be determined according to the state of facts existing at the time of issue joined. The only exception to this rule is that which obtains in relation to the measure of damage in a certain class of actions. If, after issue joined, other matters constituting a defence arise, they can only be taken advantage of under a supplemental answer.

Bow, under the pleadings in this case, any matters existing at the time of issue joined, showing that the plaintiff then had no title, could be insisted on; but the defendant could not, under the present pleading, insist on the order of the general term made since issue joined, vacating the judgment under which the plaintiff claims, as 'proof that plaintiff had no title when issue was joined. Bothing but the simple order of vacatur, reciting no adjudication on any fact, is put in evidence. That order is not proof of any pre-existing fact. It is an adjudication, and the only effect it can have is to establish a matter occurring subsequent to the joining of issue, viz., that the judgment having been vacated, cannot support plaintiff’s title. This must be taken advantage of by supplemental answer.

The decision might have been referred to in an argument on the question of the validity of the judgment by confession, for the purpose- of attacking that judgment by reason of matters appealing on its face, with the view of showing the exposition of the law in this particular case by this court. But it was not so referred to—it was put in evidence for the purpose of showing the fact of the vacation of the judgment; and for aught this court can say, the referee arrived at his conclusion, on the sole ground that that judgment having been vacated, the plaintiff could not make title under it.

Without expressing any opinion upon the point whether the effect of the vacation of the judgment by confession, on an application by a creditor, would be such as to prevent the plaintiff from claiming any right or title in the premises by virtue of the sheriff’s deed, the judgment must be reversed on the ground that the order of the general term was improperly received under-the present pleadings.

Sutherland, P. J., concurred.

Cleeke, J., expressed no opinion.

Judgment reversed, and new trial ordered.