Peet v. Cowenhoven , 14 Abb. Pr. 56 ( 1861 )

Leonard, J.

The written agreement of Nov. 10,1858, cannot be enlarged or altered in its operation, by evidence of other prior oral agreements, in consummation of which the written agreement is alleged to be erroneously or defectively executed.

I do not mean to express any doubt that the written agreement is in exact conformity with the intention of the parties, and was the final result of their previous arrangements, as might be supposed, perhaps, from the strict technical rule above stated.

The bid referred to in the writing passed to the receiver when he was appointed; any interference with it by the defendant, by assignment or otherwise, or perhaps even by taking title, would have involved a contempt. The written agreement saved the defendant from such a result; and this object, with the right to sell and convey, without complaint on the part of the receiver, subject however to the lien of the judgment, was all the object designed to be attained by the parties, so far as it appears from the writing. Van Best could have had no interest in the question, his mortgage being for consideration-money, unless indeed he knew of the receivership; and in that case the stipulation would be a protection to him, as he would be in danger of incurring the penalty of a contempt of court by dealing with the defendant in respect to the deposit made on the purchase of the property, or by making a conveyance to the defendant, when the receiver was entitled to it on fulfilling the terms of the defendant’s bid. So that it is quite manifest that the stipulation, as signed by the plaintiff or his attorney, and accepted by the defendant or his agent, has a significance and value to the defendant and to Mr. Yan Best, and is limited in its effect precisely where the interest of the plaintiff would appear to require him, with due prudence, to intend the limit of its operation.

However the fact may be, it is wholly inadmissible, on principle, to alter the effect of a written agreement, to the extent demanded here, on motion. Stipulations, affecting questions of mere practice, are sometimes vacated on motion; but no case can be found which is a precedent for so far enlarging the operation of a written agreement, on motion, as to discharge the lien of a judgment upon real estate belonging to the person against whom the judgment was.recovered.

Another question embraced in the motion here, is disposed of by the order of this court in the second district, made on the 12th of March, 1860. The proceeds of the sale of the Erontstreet premises were there specifically applied to a different judgment from that in the action here entitled.

That application of the proceeds cannot be disturbed in another motion. Even if the decision there were wrong, it can be altered only on an appeal from that order. The omission to enter the order does not give the right again to agitate the question by a fresh motion. The defeated party can enter the order, where he desires to appeal, if the prevailing party omits to do so.

The sum of $100 had been paid on the judgment in this action in 1858 or before, but the plaintiff, in issuing the execution whereon the premises in Brooklyn were recently sold, omitted to give credit for it, and directed the sheriff to collect the whole amount of the judgment.

The sheriff of Kings county made $400 by a sale of real estate, and returned the execution unsatisfied as to the residue. A sum, exceeding the sum of $100 in 1858, and the $400 realized by the sheriff as aforesaid, was due on the judgment at the time of the sale.

FTo harm was done to the defendant by reason of the omission to deduct the payment of $100 from the amount directed to be collected on the execution.

There is no irregularity to be corrected in order to save any rights to the defendant, of which he would otherwise be deprived.

The execution is not void by reason of the omission. The purchaser’s rights are not to be disturbed. The omission can be now amended if necessary by entering an order to indorse the proper direction on the execution, “ nuno pro tunc.” But I do not think if necessary, as a sum still remains to be collected after deducting the payment and collection above mentioned.

The motion is denied, with $10 costs of opposing, to be paid by the moving parties.