Re v. Diamond

Motion to amend the decision of this court handed down on December 27, 1935 [ante, p. 776], by substituting the word “ respondent ” for the word “ appellant ” in the sixth line thereof granted. Present — Lazansky, P. J., Hagarty, Davis, Johnston and Adel, JJ. The decision is amended to read as follows: Order modified by striking therefrom the provision staying the appellant from further proceeding and enforcing the collection of a judgment obtained by him in the Municipal Court, and as so modified affirmed, in so far 831 as appealed from, with ten dollars costs and disbursements to appellant. The Municipal Court had jurisdiction of the parties and the issue in controversy and respondent is bound by the judgment. While respondent claims the note, which was the subject-matter of the Municipal Court action, was procured by fraud, he does not allege there was fraud in the means by which the judgment was procured, nor does he in this action attack the judgment or ask any relief with respect thereto. Therefore, it was error to stay the enforcement of the judgment. (Stilwell v. Carpenter, 59 N. Y. 414; Fuhrmann v. Fanroth, 254 id. 479.) Lazansky, P. J., Young, Hagarty, Davis and Johnston, JJ., concur.