
    John C. Anderson, Resp’t, v. Walter S. Carr, App’lt, et al.
    
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed September 9, 1889.)
    
    1. Judgment — Will not be vacated in the absence of pboof of fbaud on plaintiff’s part.
    Settlement of a claim by a third person was refused, unless defendant would consent to entry of judgment against him in this action, in which he had been joined to cut off his right of curtesy, and such consent was Xirocured on a statement that counsel were of opinion that he had no interest in the xiroperty. Held, that the advice was not necessarily dishonest or fraudulent, and that in the absence of proof of fraud on x>laintifE’s part, the judgment should not be vacated.
    3. Same.
    The principle that a party is entitled to have a void judgment or order vacated, and not be remitted to his collateral action, does not apply where he has consented to its entry.
    
      Appeal from an order denying motion to vacate and set aside a judgment.
    
      John J. Leary, for app’lt; North, Ward & Wagstaff, for resp’t.
   Cullen, J.

We think that the defendant did not show a case, entitling him to have the judgment entered in this action vacated. That judgment was entered upon his consent His daughter, Mrs. Watson, had brought ejectment against the plaintiff’s grantees, alleging that the will under which the plaintiff claimed title was void. She succeeded in that action at circuit, and an appeal was taken to the general term. Pending that appeal this-action was instituted to establish the will. Negotiations were had for the settlement of the daughter’s claim. When the time for the settlement of the daughter’s claim arrived, the plaintiff refused to consummate the settlement unless the defendant Can’ would consent to the entry of judgment against him in this action; accordingly the daughter’s husband obtained from defendant such consent, stating that the counsel were of opinion that he had no-interest in the property. He now seeks to avoid that consent on the ground that such advice was wrong.

Assuming that the defendant had a right of curtesy in the property, in case the will of the grandfather was void, the opinion given by the counsel, though erroneous, was not necessarily dishonest or fraudulent. The daughter’s case had been once at the general term on appeal from an adverse judgment, and she had finally recovered at the circuit without the point that the father had his curtesy having been raised, a point which, if well founded, would have been fatal to her action. That there was a possibility of such claim was apparent, for Carr was made a party to this action to bar any such claim. The plaintiff’s counsel made it a condition of the settlement that the defendant’s claim, if any, should be barred by his consent to the judgment. The nature and effect of the consent was understood by the defendant, and though he was told he had no valid claim, he must have been aware that the only object of the consent was to cut off the possibility of a claim. On this consent the plaintiff paid for the daughter’s interest. The plaintiff and defendant dealt at arms’ length. While there are intimations of collusion between the defendants’ attorney and the plaintiff, there are no facts shown to prove such averments, and they are explicitly denied by the parties charged. H such, however, be the fact, the defendant can avoid the judgment for fraud in a direct action brought for that purpose. But in the absence of proof of fraud on the plaintiff’s part, he should not be deprived of the benefits of his settlement, certainly not without an offer to restore to him what he has paid on account of that settlement.

It is objected that as the court of appeals has held that this, action will not lie, the judgment was entered without jurisdiction and is void Such result does not follow. But if the judgment be void defendants can assail it collaterally whenever it may be set up as a bar to his rights. It has been repeatedly held that a, party is entitled to have a void judgment or order vacated, and not be remitted to his collateral action. This is true where the order or judgment complained of was made against his opposition or without his authority. But that principle cannot apply where the party has consented to the entry of the judgment or order.

The order appealed from should be affirmed, with ten dollars costs and disbursements. •

Pratt, J., concurs.  