Gardner v. Lay
New York Court of Common Pleas
Appeal "by the defendant from an order vacating an order for the examination of the plaintiff as a judgment debtor on proceedings supplementary to execution. On the 20th day of February, 1861, the plaintiff petitioned, under the Two-third Act, for his discharge as an insolvent debtor.
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Appeal "by the defendant from an order vacating an order for the examination of the plaintiff as a judgment debtor on proceedings supplementary to execution. On the 20th day of February, 1861, the plaintiff petitioned, under the Two-third Act, for his discharge as an insolvent debtor. In March of the same year, in a suit pending at the time of the petition, the plaintiff suffered a default, and the defendant dismissed the complaint, and entered a judgment against the plaintiff for $110 costs. In the following November, the plaintiff was discharged from his debts. The defendant procured an…
1Opinion of the Court
By the Court.—Daly, F. J.
The statement of the plaintiff, that the defendant agreed that the suit might be discontinued without costs, and that the judgment was therefore a surprise upon him, is declared by the defendant to be untrue, and the defendant’s affidavit is substantiated by the facts detailed in the affidavit of the plaintiff’s attorney. But even if such an agreement had been made, it would not entitle the plaintiff to have the supplementary order set aside. His remedy would be to apply to the court to open the judgment, and it would depend upon the result of that application,…
2Cases cited5 opinions
- Kellogg v. SchuylerNew York Supreme Court · 1846
- Parkinson v. ScovilleNew York Supreme Court · 1838
- M'Neilly v. RichardsonNew York Supreme Court · 1825
- Ex parte ThayerNew York Supreme Court · 1825
- Rose v. BriggsNew York Supreme Court · 1831