Williams v. Hernon , 4 Abb. Ct. App. 611 ( 1866 )

By the Court.

Peckham, J.

I incline to think that the facts on which the motion was based were substantially met and denied by the plaintiff. The particular allegation of fraud as to the demand of Hurd was particularly denied, and the other general allegations, as to persons not remembered, are also denied. The force of the defendant’s affidavit is considerably diminished by his first affidavit verifying the judgment, where he swears, not on information and belief, but positively, that the amount of the judgment is due the plaintiff. Under such circumstances, where his affidavit, made more than seven years after the entry of the judgment, impeaching that judgment, is substantially denied by the plaintiff, I can see no reason for departing from the ordinary rule, that the party asking for relief must make out his case by a preponderance of proof; a balanced case is not enough. There was, then, no ground of fact for setting aside this judgment. It is conceded, and is clearly true, that the statement of facts, out of which the debt arose, is sufficient, and the judgment entirely legal in form. The judge at special term was, therefore, right in denying the motion to set it aside, and the general term, I think, erred m reversing that order.

The appellant insists that the general term reversed the order upon a question of law, on the insufficiency of the statement. The respondent insists that their action was based entirely on the facts, and concedes that there was no question of law in the case. No opinion was delivered by either court. The provision of the Code of Procedure, that a judgment reversed at a general term “ shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal,” section 268, amended by 2d. paragraph, does not apply to orders made on special motion upon affidavits. The respondent was, therefore, at liberty to insist that the order was made upon a question of fact. But we think there were no facts to warrant the order. The order of the general term is, therefore, reversed, and that of the special term is affirmed, with costs.

All the judges concurred, except Pouter, J., not voting.

Order cf general term reversed, and order of special term affirmed, with costs.