Kidd v. Curry

Barnard, P. J.:

There is no basis for this appeal. The defendant obtained a judgment against the plaintiff and collected it by execution. The judgment was “ subsequently vacated and set aside.” The defendant therefore holds the plaintiff’s money without any right to retain the same. An action lies to enforce its repayment. (Clark v. Pinney, 6 Cow., 299; Sturges v. Allis, 10 Wend., 354.) It does not even appear that a new trial was ordered. Upon an application for restitution by order, made to the court, equitable considerations may arise and conditions be put upon the restitution in reference to the safe keeping of money collected.

The money, upon a new trial, may .still belong to the creditor, but as against an action there is no legal defense.

The remedy is either by motion (Code C. P., § 1823) or by action. (Lott v. Swezey, 29 Barb., 88.)

The judgment should be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.