
    Sam S. Utter, Resp’t, v. Alexander McLean and ano., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    1. Judgment by confession—Fraud—When set aside on motion.
    A junior judgment creditor who has had an execution issued upon his judgment, may on motion, have a senior judgment entered on confession set aside upon the ground of fraud, as an obstruction to the levying of his execution.
    2. Same—Partnership interest.
    Where the moving parties seeking to set aside the judgment by confession, are judgment creditors of only one of a firm confessing the judgment, they have a right to have the judgment set aside so far as it obstructs a levy upon the interest of such member.
    Appeal from order denying motion to set aside judgment on confession.
    
      A. It. Robertson, for app’lts;' M. Worley Platzek, for resp’t.
   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 Brown, upon the ground that said confession of judgment Avas 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. Earl, 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. Ahd 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 (3 Keyes, 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 Frasier v. Frasier (9 John., 80), where the supreme court directed an issue as to charges of fraud in the record.

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 or conveyance, upon the ground that such judgment or 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 case 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 judgment.

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 a-re necessary to entitle the moving party to the relief asked.

But there is another point which 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 plaintiffs, 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 ten dollars costs and disbursements, and the motion granted to the extent indicated.

Brady and Barrett, JJ., concur.  