
    Herman Oetjen, Respondent, v. Henry F. Fayen, Appellant.
    (New York Common Pleas—General Term,
    March, 1894.)
    A motion to set aside a judgment on the ground that a consent to the entry thereof was procured by false representations as to the claim made by the complaint is properly denied where it appears that defendant was served with the papers in the case, and thus had the means of discovering the falsity of the representation and ascertaining what he was sued for.
    A debtor may waive an objection that the time of credit has not expired, and does so by consenting to the entry of judgment.
    Appeal from order of the General Term of the City Court, affirming order denying the motion of defendant to vacate the judgment against him or to reduce the amount thereof, and to vacate attachment issued in the action.
    Action to recover for goods sold and delivered to defendant. Defendant claims that he was coerced by threats of arrest to consent to the entry of judgment, and that, notwithstanding a settlement of the cause of action, judgment was entered, and a satisfaction piece filed five minutes afterward.
    
      Gumbleton dk Hottenroth, for appellant.
    Forster, Hotaling & Klenke, for respondent.
   Per Curiam.

The defendant swore that he had never been served with the summons, nor complaint, nor with the affidavits upon attachment, but he was contradicted by at least three witnesses, and we cannot interfere with the conclusion of the City Court upon a question of fact so presented. The motion to set aside the judgment upon the ground that the defendant’s offer thereof or consent thereto was procured by false representations as to the claim made by the complaint was properly denied, since, as he liad been served with the papers, he had the means at hand of discovering the falsity of the representation and of ascertaining what he was sued for. It also appears that the judgment was entered for no greater sum than he owed, if the time of credit had expired. As to a part of the indebtedness the credit had not expired, but he could waive that objection, and he did so by consenting to a judgment for the whole amount. It does appear that he overlooked the fact that a credit of twenty dollars was not allowed him, but as the judgment was immediately satisfied he was not injured. The motion to vacate the attachment upon the merits was made upon the facts, and as there was sufficient evidence to sustain the finding the decision will not he disturbed. No irregularities in the affidavits were pointed out in the notice of motion as required by the rules. The order should be affirmed.

Present: Daly, Ch. J., and Pryor, J.

Order affirmed, with costs.  