Harmon v. . Hope

Finch, J. This order is sought to be sustained upon two grounds: first, that the effect of the order of July 20, 1880, made by the Court of Common Pleas, vacating its order of November 13, 1878, by which the lien of the Nathans judgment was suspended during appeal was to restore the original lien as against the creditor whose judgment was docketed in the interval; and, second, that Bradley, the assignee of said judgment, did not purchase it in good faith, because not for full value, and is, therefore, not within the protection of the Code (§ 1256). We cannot assent to either proposition. The provisions for suspending the lien of a judgment during the continuance off an appeal as against judgment creditors, purchasers and mortgagees in good faith (Code, §§ 1256, 1259), ‘ are a snare - and a delusion, if, by the mere process of vacating its order of suspension, the court can destroy 'the liens taken upon the faith of its own order. It would be a very clear and relentless necessity that could drive us to such injustice. No such necessity exists. If, as is argued, the vacating of the original order operated retrospectively, it could only do so as against persons bound by it and not specifically and expressly protected against the lien asserted. Neither the judgment creditor nor his assignee were in any manner shown to be parties in the original action or upon the proceeding for vacating the order. We are asked to presume the latter fact. We decline to do that. The presumption is the other way. There is no principle, therefore, upon which this order can be made effective to destroy the right of the judgment creditor obtained under the express sanction of the law. ( Union Dime Savings Inst. v. Duryea, 67 N. Y. 84.) But it is said Bradley did not purchase the judgment in good faith because he only paid $200 for it and its amount was more than $38,000 ; and that he was assignee with notice and not entitled to favor. The assignments show that he not only paid the $200, but assumed a lien of counsel upon the 'judgment *14 for an amount which we do not know. There is not a particle of evidence that he did not pay its full value, taking into account these liens. He had a right to buy the judgment as cheaply as he could and stands entitled to all the rights of his assignor. We have searched the papers in vain to find that he had any notice of any thing except the -order on file suspending the lien. We think, therefore, the order should be reversed, and an order entered that the appellant is entitled to the whole of said surplus moneys, and that they be paid over to him, with costs. All concur. Ordered accordingly.