Cook v. New Amsterdam Real Estate Ass'n ( 1896 )

Bartlett, J.:

This was an action to foreclose a mortgage for $10,000, made by the New Amsterdam Real Estate Association to .James W. Malcolm and by him assigned to the plaintiff. The corporation answered, alleging that the mortgage was in reality security for only $5,000, of which $2,000 had been paid. The case was regularly brought to trial, the defendant association being represented in court by Mr. John H. Clapp as its attorney, and the plaintiff obtained judgment of foreclosure and sale.

■ This judgment has now been set aside by the Special Term upon .an. affidavit of Mr. Clapp’s* to the-effect that he allowed judgment to be taken, because Mr. Malcolm requested him to do so, and promised to see that the amount of the mortgage was properly adjusted afterward 'at a sum much lower than the plaintiff’s claim.

Mr. Malcolm positively denies, having made any such agreement, and the alleged promise certainly was not established by a preponderance of evidence. , >

The defendant association had had its day in court. It failed to offer any .proof in support of the: defense it had set up, although its counsel had abundant opportunity to do so. The .plaintiff: proved the' '.amonnt due and to,ok his decree in the regular and ordinary course of procedure, and we are Unable to perceive any good reason in law why he should be deprived of the benefit thereof simply because -of something said by Mr. Malcolm to Mr. Clapp.' It does ■not "appear that Mr. Malcolm, even if he did make the statements . attributed to him, had any authority Or assumed to represent the plaintiff. Nor does it seem probable that the defense pleaded by the respondent is meritorious. The statements in support thereof in* the moving affidavits are oninformation and belief, while the papers in opposition contain direct and positive averments .of fact tending to show that the plaintiff is entitled to "the full amount Of the judgment.

It is not clear what interest the New Amsterdam Real Estate Association can have had to vacate - this judgment, inasmuch as the property covéred* by the plaintiff’s mortgage has been sold upon the foreclosure of subsequent mortgages.

We do not think a judgment should be set aside lightly, where the party against whom it runs has once had a fair and full opportunity to contest the claim of his adversary, and has practically conceded" the validity of that claim by coming into court and, allowing the judgment to be taken. To warrant interference- in such circumstances it must be made plain that the moving party has suffered an ■ injustice, and such-does not seem'to us to be the casé here.

The order- appealed from should be reversed, with costs..

All concurred.

'Order reversed, with ten- dollars costs and disbursements, and 'motion denied, with ten dollars costs.