
    Utter v. McLean et al.
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Judgment—Motion to Set Aside—Return of Execution.
    A junior judgment creditor, who has had an execution issued, may by motion, before it is returned nulla bona, have a senior judgment set aside for fraud, as an. obstruction to a levy.
    3. Same—Partnership.
    Where the parties moving to set aside for fraud a senior judgment by confession are the junior judgment creditors of only one of the firm which confessed the judgment, it should be set aside, so far as it obstructs a levy on the interest of the partner, who is the judgment debtor of the moving parties.
    Appeal from special term, New York county.
    The plaintiff, Sam. S. Utter, obtained a judgment against the defendants, Alexander McLean and Frank T. Brown. Subsequently William D. Southard, George W. Bobertson, and William Corry also obtained a judgment against the same defendants, and moved to set aside the senior judgment of Utter on the ground of fraud. The motion was denied, and from the order denying the motion the moving parties appeal.
    Argued before Van Brunt, P. J., and Brady and Barrett, JJ.
    
      A. R. Robertson, for appellant. M. W. Platzelt, for respondent.
   Van Brunt, P. J

A motion was made on behalf of one Southard and others, who were judgment creditors of one Alexander McLean and one Elizabeth A. McLean, upon which judgment-they had duly issued an execution to set aside a confession of judgment made in favor of plaintiffs herein by the said Alexander McLean and one Frank T. Brown, upon the ground that said confession of judgment was fraudulently entered. No affidavits denying the fraud were offered in support of the judgment, and upon the hearing the court denied the motion, and from the order thereupon entered this appeal is taken.

The points which are now urged in support of the ruling of the court below are, first, that the junior judgment creditors cannot test the validity of a senior judgment by motion upon allegations of fraud, where the judgment is valid upon its face, and in no way defective, and that the only mode of testing the validity of the senior judgment is by an action; and we are referred to the cases of Miller v. Earle, 24 N. Y. 110, and Dunham v. Waterman, 17 N. Y. 9, to support this proposition. But an examination of those cases shows that no such question was there presented. In Miller v. Earle it is simply decided that money made and paid over under a confession of judgment, although it may be defective, cannot be reached by motion, where no fraud is alleged. And in Dunham v. Waterman the only point in the decision pertinent to the question now before the court is that it decides that an action may be maintained to set aside such a judgment; whereas, in the case of Williams v. Hernon, *42 N. Y. 99, and in Chappel v. Chappel, 12 N. Y. 215, the right of the court to entertain a motion to set aside a confession of judgment upon the ground of fraud is expressly recognized. The same was held in case of Era sier v. Frasier, 9 Johns. 80, where the supreme court directed an issue as to charges of fraud.

It is further urged, as an objection to the granting of this motion, that in an action by a judgment creditor to set aside a judgment on conveyance, upon the ground that such judgment of conveyance was made to defraud creditors, the plaintiff must allege in his complaint, and prove on the trial, that his execution has been -returned unsatisfied, or that an execution has been issued upon the judgment. This proposition is undoubtedly true, but in the ease at bar all the conditions have been fulfilled. The moving party is a judgment creditor. He has execution issued upon his judgment, and he makes his motion to remove an obstruction to the levying of the execution which he has issued. He is in a condition to maintain an action, and, being in a condition to maintain an action, he can, under the authorities cited, obtain this relief by motion, the court having full control over its own judgments. It is urged that the moving party attacks the consideration upon which the judgment is founded, and alleges the same to be false and fraudulent,-and that the court ■ cannot and will not determine, in a summary way, on motion on affidavits only, such serious charges of fraud. In reply to this objection it seems to be sufficient to say that when the fraud is confessed there is no very great difficulty in determining the only questions of fact which are necessary to entitle the moving party to the relief asked.

But there is another point which it seems to be necessary to consider upon this appeal, and that is that the moving parties are not judgment creditors of the firm who confessed the judgment to the plaintiff, but they are judgment creditors of another firm, not composed of the same persons. It appears, however, that one of the defendants in each of the judgments is the same person, and the moving parties, therefore, have a right to levy upon the assets of the firm of McLean & Brown to reach and sell the interest of the defendant Alexander McLean therein. The judgment, therefore, by confession, and the execution issued thereunder, should be set aside, so far as they obstruct the moving parties from levying upon and selling the right, title, and interest of Alexander McLean in the firm property of McLean & Brown. The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted to the extent indicated. All concur.  