
    Charles H. Ingalls, as Receiver of the King Drop Forge Company, Respondent, v. Merchants' National Bank of Philadelphia, Appellant.
    
      üomplaint to procure the cancellation of a judgment — inju notion to ps'erent payment of the proceeds of a sale, thereunder, by the sheriff, to the judgment creditor — security required as a condition of granting it.
    
    An action to- procure the cancellation of a judgment entered against a corporation by default, upon the ground that the note sued upon was given without consideration, cannot be maintained by a receiver of such corporation appointed subsequent to the judgment, where the complaint contains no allegation of fraud, collusion, accident, mistake or any other ground for equitable interference.
    An affidavit accompanying the complaint which alleges that the proceeds of the sale under an execution issued upon such judgment would, if paid to the judgment creditor, be removed to a foreign State, does not warrant the granting of an injunction restraining the sheriff pendente lite from paying the proceeds of the judgment to.the judgment creditor, as the receiver does not seek by his action to obtain such money, but simply to vacate and set aside the j udgment. The security to be given in order to obtain such an injunction is fixed by section 613 of the Code of Civil Procedure, which requires, as a condition of staying proceedings upon a judgment for a sum of money, that the full amount of the judgment be paid into court or an undertaking be given in lieu thereof as well as an undertaking to secure payment of the damages.
    Appeal by the defendant, the Merchants’ National Bank of Philadelphia, from an order, of the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of "the county of Richmond on the 8th day of March, 1900, enjoining the defendant from receiving payment of a judgment in its favor ■from the sheriff of Richmond county and from taking any steps towards enforcing the payment of such judgment during the pendency of the action.
    
      Howard R. Bayne, for the appellant.
    
      William D. Gaillard, for the respondent.
   Hirschberg, J.:

The defendant recovered a judgment for $2,027.84 ■ against the King Drop Forge" Company on the 12th day of June, 1897, in an action on a promissory note. The plaintiff was appointed receiver of the company .on the 8th day of January, 1898, in proceedings- • for its voluntary dissolution. On the 4th day of November, 1899, the defendant, on due notice ,and after a hearing of the "receivers counsel in opposition, procured an order of the court vacating and modifying an injunction order theretofore granted in the dissolution, proceedings in so far as such injunction order restrained the defendant from collecting its judgment, and duly authorized the defendant to take proceedings under said judgment to collect the same by a sale of the land of the company. No appeal appears to have been taken from the order so granted against the receiver, authorizing the sale of the real estate of the insolvent company under the defendant’s judgment. On the 6th day of January,'1900, the real estate of the company was sold on execution issued under the judgment for $2,468.95, and thereafter a certificate of sale was issued to the purchaser, and the purchase money paid to the sheriff of Richmond county. Meanwhile the receiver obtained an order in the dissolution proceedings ■ authorizing and directing him to prosecute an action against the defendant to vacate and set aside the judgment, and this action was commenced by him under that authority and for that purpose. After commencing this action, the receiver moved the court, in the action in which the defendant’s judgment was recovered, for an order directing the sheriff to retain .in his hands-the proceeds of the sale until the determination of the action brought by the receiver to set aside ¡the judgment. . This motion was denied on the ground as recited in the order that the court com sidered “ that the relief sought by said receiver should be obtained, if at-all,; by an injunction in the action aforesaid brought -by said receiver, rather than in the action in which said judgment.was obtained.” In denying the motion the learned justice tiled a memo-, randura opinion in the course of which he said-: “I think the receiver’s remedy is an injunction to be sought in some action .of his own against .this plaintiff and the sheriff where he will be required to give security.” The receiver then' applied for the injunction in this action and obtained an order granting the motion and enjoining and restraining the defendant from receiving payment of its judgment from the sheriff or from ' taking any steps-towards enforcing payment during the pendency of the action, on condition that the plaintiff file approved security in the sum of $300' conditioned for the payment of defendant’s damages in loss of interest should the court finally determine that the plaintiff was not entitled to the injunction. From this order the defendant appeals.

The allegations of the complaint show no facts establishing an equitable cause of action, and the sole relief sought is that the judgment be declared void and canceled. The action is not brought to procure an injunction. The cpraplaiut alleges that the defendant is a foreign corporation and that the plaintiff wa» appointed receiver of-the King Drop Forge Company in dissolutionproceedings which are set out in detail. It then alleges in reference to defendant’s judgment that it was entered by default, and upon information and belief that the ■ note ' sued on was given without consideration. In other words,.the sole ground upon which the plaintiff seeks to have the judgment set aside and canceled is that he is informed and believes that the corporation had a defense in the action which it did not interpose. There is neither allegation nor suggestion of fraud, collusion, accident, mistake, or any other ground for equitable interference. Nor would general allegations of the kind indicated be sufficient without a statement of the facts supporting them. (N. Y. & M. V. Transportation Co. v. Tyroler, 25 App. Div. 161.) “ It seems to be conclusively settled that a judgment can only be impeached in a Court of Equity fqr fraud in its concoction: * * * If then the judgment of a court of competent jurisdiction can only be enjoined in a Court of Equity upon the ground of fraud (and this fraud must have been practiced in the very act of obtaining the judgment or else it will be concluded by the judgment at law, where fraud is equally a defense as in equity). * * * ” (Story Eq. Juris. § 1575.) In Adams’ Doctrine of Equity (p. 197) the rule is stated as follows: “First: That if, after judgment, additional circumstances are discovered not cognizable at law, but converting the controversy into matter of equitable jurisdiction, the Court of Chancery will interpose. Secondly: That even though the circumstances so discovered would have been cognizable at law, if known in timq, yet if their non-discovery has been caused by fraudulent concealment, the fraud will warrant an injunction. But, thirdly, that if the newly discovered facts would have been cognizable at law, and there has been no fraudulent concealment, the mere fact of their late discovery will not of itself create an equity; although if a bill ■of discovery has been filed in due time, the proceedings at law might have been stayed until the discovery was obtained. And still less can any equity arise, if the facts were known at the time of the trial, and the grievance complained of has. been caused either by a mistake in pleading, or other mismanagement, or by a supposed error in the judgment of the court.” In Ross v. Wood (70 N. Y. 8) itz was held that the fraud which will justify equitable interference in setting aside a judgment or decree must be actual and positive, not merely constructive ; it-must be fraud occurring in the concoction or procurement of the judgment or decree, which was not known to the party at the time, and for not knowing which he is not chargeable with negligence. In Stilwell v. Carpenter (59 N. Y. 414) Judge Andrews said (p. 423): In the case of The Marine Ins. Co. v. Hodgson (7 Cranch, 332) Marshall, Ch. J., says, that any fact which clearly' proves it to- be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law,, but was prevented: by fraud or accident unmixed with any fault or negligence in himself or his agents, will justify an application■ to the Court of Chancery. The limitations under which courts of equity' act in 'interfering with judgments at law, stated' by Chief Justice Marshall, are recognized in numerous cases. (Foster v. Wood, 6 J. Ch. 87; Simpson v. Lord Howden, 3 Myl. & Cr. 97; Powers v. Battle, 3 Green’s Ch. 465; Dobson v. Pearce, 12 N. Y. 157; 2 Lead. Cas. in Eq. 89, and cases cited.) It is not sufficient to authorize the interference of the court that it is shown that the claim upon which the judgment was obtained was unfounded, or that there was a good defence to the action,- or that the court erroneously decided the law, or that the defendant omitted to avail himself of his defence, if before the judgment was rendered the facts were known, or might by the exercise of reasonable diligence have been ascertained by him.” (See, also, Mayor v. Brady, 115 N. Y. 599.)

The case cited by the respondent (N. Y. & Harlem R. R. Co. v. Haws, 56 N. Y. 175) is not in conflict with this view. It expressly holds that equity will not interpose upon the ground that the verdict or judgment was erroneous, but only where it is- made to appear, by' facts of which the party coxdd not avail hixnsélf as a defense, that the enforcement of the judgment would be contrary to equity and good conscience.

The complaint on the motion for the in junction herein was accompanied by an affidavit presented on plaintiffs behalf to the effect that, if the judgment'were collected, the proceeds would be removed by the defendant out of the jurisdiction of the court, and taken to the State of Pennsylvania' where the defendant is incorporated and domiciled. This is scarcely an act which would tend to render ineffectual the judgment sought in this action, within the meaning of subdivision 1 of. section 604 of the Code. The object of the plaintiff’s action is not at all to obtain the money now in the sheriff’s hands, but is to vacate and set aside the judgment, under which that money was obtained, so that the real estate may be freed from the lien of the judgment, and may come to his hands as receiver intact. If the plaintiff could succeed in this action in so canceling the judgment, the decree would be equally effectual whether the proceeds of the sale remain in the sheriff’s hands or are taken by the defendant to Philadelphia. The disposition of the proceeds might indeed be a matter of interest to the purchaser who has paid them to the f.heriff on a judicial sale, but as the purchaser has nót been made a party to the suit, his rights would probably not be affected.

The security exacted by the court is insufficient. In this respect the proceeding is governed by section 613 of the Code requiring, as a condition of staying proceedings upon a judgment for a sum of money, that the .full amount of the judgment be paid into court, or an undertaking be given in lieu thereof, as well as an undertaking to secure payment of the damages. The case differs from Woerishoffer v. North Liver Construction Co. (99 N. Y. 398), where the order forbade interference with' assets in the hands- of the receiver, and from Attorney-General v. Guardian, Mutual Life Ins. Co. (77 N. Y. 272), where the injunction was granted in the action in which the receiver was appointed, and stayed the suit of a creditor brought to recover assets to which the receiver was entitled.

The order should be reversed and the injunction dissolved.

All concurred.

Order -reversed, with ten dollars costs and disbursements, and injunction dissolved.  