Haubrich v. Haubrich , 40 N.Y.S.2d 954 ( 1943 )

Hallinan, J.

Motion by the defendant for ah order directing the plaintiff to execute and deliver to him a satisfaction of the judgment in the sum of $232, entered herein on or about April 4, 1940, for arrears of alimony, upon the ground that the plaintiff has withdrawn moneys in a joint account in the sum of $602.50, no part of which has been turned over by her to the defendant.

Aside from opposing the application on the merits, the plaintiff contends that the procedure adopted by the defendant in moving for relief by way of. motion is not proper in this case. I do not agree with this view. This court has control over its records and ordinarily may, whenever a defendant claims that he is entitled to have a judgment discharged or satisfied of record because of payment or performance or by reason of other facts, determine upon motion the right to such relief. (2 Freeman on Judgments [5th ed.] § 1163.) There is no advantage to be gained by resorting to an action for such relief. Such defenses as may be available can also be set up on the motion and any factual issues referred to an official referee. (Cf. Neenan v. Woodside-Astoria Transp. Co., 261 N. Y. 159.) Accordingly the application will be entertained and all issues referred to an official referee to take testimony and report. He should also report as to whether there are any arrears of alimony in addition to the judgment, up to the date of plaintiff’s remarriage on February 14, 1943.

Settle order on notice.