Bensen v. Perry

Bockes, J.: According to the record the judgment is fully paid and satisfied. The certificate of its satisfaction has been duly entered. In this condition of the record there can be no sale of the judgment-debtor’s properly under it, even for sheriff’s fees, admitting an original levy by that officer under the execution. The fees of the sheriff ai;e but an incident of the judgment, and are gone on its [19] payment and satisfaction, except in so far as the officer may claim them from the judgment-creditor or his attorney. (Jackson v. Anderson, 4 Wend., 474, 479; Ousterhout v. Day, 9 Johns., 114; Parsons v. Bowdoin, 17 Wend., 14; Campbell v. Cothran, 56 N. Y., 279.) But it is insisted in this case that the certificate of satisfaction was executed and delivered under a mistake of fact, in this, that the attorney for the judgment-creditor, when he gave the satisfaction piece, was not aware or had forgotten the fact that an execution had long before issued on the judgment and remained in the hands of the sheriff, so he moved to have the satisfaction vacated, and that the sheriff be permitted to collect his fees and poundage on the execution. It is not denied but that the judgment was fully paid, and it was not and is not proposed to disturb such payment, except as the sheriff may be allowed to levy and collect his fees. The payment and satisfaction of the judgment, except for the sheriff’s fees, are to stand and no return of the money paid is proposed. It is a general rule that where .some action or proceeding is sought to be vacated and annulled for fraud or mistake, the party taking action must put his opponent in his original position or offer so to do. This is not always necessary where relief is sought by action, although it will be imposed as a condition of granting r-elief. In actions, equity may be worked out ■through conditions and provisions to be inserted in the judgment ultimately awarded in the suit, hence an offer of restoration before bringing suit is not always necessary. (Hay v. Hay, 20 N. Y. S. C. [13 Hun], 315.) In the case now before us restoration is not proposed, nor is any provision made in that regard in the order, if indeed it would be appropriate to a proceeding by motion The money paid in satisfaction of the judgment is held and retained as payment of the .judgment; the judgment therefore stands fully paid. The order appealed from does not disturb or affect that payment, and even if the satisfaction piece be vacated and- set aside, still the - judgment remains paid. The money was delivered in payment, and was accepted and is .still held as payment, and notwithstanding this, the order granted at Special Term contemplates the collection of sheriff’s fees on an execution without any valid judgment for its support. In this view of the case the order was improperly granted. [20] The order appealed from must be reversed, with ten dollars, costs and disbursements for printing, and the motion for the relief sought at Special Term denied, with ten dollars costs. Learned, P. J., and Boaedman, J., concurred. Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.