Legal Opinion

Pitkin v. Cooley

New York Supreme Court

Decided June 15, 1875Published

The defendants moved,in tbe County Court to stay proceedings upon a judgment of that court for $121, on tbe ground that it was settled. The motion was opposed upon affidavits tending to show that the settlement was procured by misrepresentation or concealment in. regard to the original amount of the plaintiff’s claim.

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The defendants moved,in tbe County Court to stay proceedings upon a judgment of that court for $121, on tbe ground that it was settled. The motion was opposed upon affidavits tending to show that the settlement was procured by misrepresentation or concealment in. regard to the original amount of the plaintiff’s claim. The court declined to determine the question upon the affidavits, and directed a reference to a referee to take testimony and report the same, with his opinion.' The referee reported the testimony, with his opinion that there had been concealment, whereby the plaintiff was made…

1Opinion of the Court

GILBERT, J. :

The Code does not define remedies; it merely distributes them into two classes, viz., actions and special proceedings. Whether a given remedy belongs to one or the other of these classes, is determined at the commencement of it; and every incidental or interlocutory application for relief in .either class, whether before or after judgment, is a step taken in the action, or special proceeding, as the case may be. It is not a new or independent remedy. (See Belknap v. Waters, 1 Kern., 478.) It has been held repeatedly, that proceedings supplemeútary to execution belong to the…

2Cases cited1 opinion

  1. Seeley v. BlackNew York Supreme Court · 1868

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