Brown v. Marrigold

Hardin, J. — The report of the referee upon the evidence submitted to him, has reported conclusions of fact; and, like [252] the verdict of a jury, these conclusions must be accepted by the court when based upon evidence. It is not apparent that the essential questions arising upon this motion have been found without sufficient evidence to sustain the findings of the referee. Accepting, therefore, the conclusions reached by the learned referee as to the time when and object of the admissions of service in the two eases wherein Whitney is plaintiff, this case is brought within the opinion of Merwin, J., in Trolan agt. Fagan (48 Howard, 240); (see, also, 2 Kernan, 515 ; Dinsmore agt. Adams, 48 Howard, 274.) Following that opinion, is is the duty of the court to order - such judgments set aside as against the judgment creditors moving here. II. The next question relates to the. judgment of $3,000, entered upon confession by the defendant, in favor of Julius Marrigold, her brother. The statement is very laconic, and more than concise. The expression “ for money let this day,” does not state what amount of money was that day loaned; it does not state any sum; it does not state when it was loaned; it does not state that any other security was given upon the loan it does not state that a note was given “ for that amount of money being had by the defendant of the plaintiff,” as was stated in Frelegh agt. Brink (22 N. Y., 418). The quoted words “for that amount of money,” upheld the confession in that case, according to the opinion of Denio, J. (supra, 419), which accords with the decision in Lansing agt. Carpenter (20 N. Y., 458), opinion of Comstock, J. (see, also 24 N. Y., 325). The occasion for the loan is not stated, as in Acker agt. Acker (38 N. Y., 295), opinion by Denio, J. In Clements agt. Lown (38 N. Y, 298; 1 Keyes), the confession was “ for money lent by said plaintiff to me, on the 1st day of April, 1856, and interest thereon from the first day of April, 1857;” and that was held to be sufficient. Here the date is found as [253] in that case, and the lender and borrower are stated as in that case. Following the case of Clements agt. Lown, the statement here must be held to be formally sufficient. But the referee has found the judgment to be fraudulent, in fact, and given for a fraudulent purpose ; and it is competent for a subsequent judgment creditor to raise and rely upon such assault upon the judgment (5 Johns. Ch., 320 ; 9 Johns., 80 ; Read agt. French, 21 N. Y., 285 ; 15 How., 228). The motion is not for irregularity but for fraud, therefore it was made in time (30 Barb., 185). It follows, from the views here expressed, that as against the judgment creditors making this motion the two judgments in favor of Whitney and the judgment in favor of Julius Marrigold must be set aside and vacated. The order may provide for the allowance to the moving party of ten dollars costs, at this motion, and also directing the payment by Julius Marrigold of the referee’s fees and witnesses’ fees, to be taxed by the clerk of Jefferson upon five days’ notice after service of a copy of this opinion, and after such taxation the clerk of Jefferson may enter an order in accordance with this opinion.