
    Jeanette Demuth, Appellant, v. George Kemp, Respondent.
    (Appeal No. 3.)
    Second Department,
    April 28, 1911.
    Judgment—intentional default not opened.
    A defendant who intentionally, allowed judgment to he entered on Ms default at a time- when, under the decisions, trust funds, Ms sole financial resource, could not be reached on execution, is not entitled to have the judgment vacated when the decisions are subsequently Overruled so that such funds become subject to execution.
    Appeal by the plaintiff, Jeanette Demuth, from an order of the'Supreme Court, made at the Kings County Special Term" and entered in the office of the clerk of the county of Kings on the 30th day of December, 1910, vacating and setting aside a judgment in favor of the plaintiff entered on the 14th day of May, 1902, upon an inquest taken on the 7th day of May, 1902.
    
      James S. McDonogh [Francis X. McDonough and Gerald van Casteel with him on the brief], for the appellant.
    
      Joseph Brewster, for the respondent. '
   Hirschberg, J.:

The order appealed from vacates an inquest taken in May, 1902, which resulted in a judgment in favor of the plaintiff for the sum of $41,324.63. The order is granted on the payment of the costs, with interest to date,- and the costs of the motion, the judgment to stand as security for such judgment as may result in favor- of the plaintiff on a new trial. The order cannot be upheld.' The judgment was entered on the abandonment by the defendant of whatever defense he may have had to the plaintiff’s claim, the abandonment being intentional, deliberate and in accordance with legal advice given to him at the time by his own counsel; and no reason appears for a new trial excepting that the plaintiff may now be able to collect a portion of the claim, which she has been unable to do during the many years intervening:

The action was commenced by personal service of the sum,mons and a verified complaint'on the 24th day of April, 1900. The plaintiff’s claim wag based'on two promissory notes made by. the defendant to the plaintiff’s order, one for $21,000 and one for $300, and on money loaned by the plaintiff to the defendant at various times. Issue was joined by the service of a verified answer in .tie month of May, 1900. It admitted ■ the making of the promissory notes, but denied the delivery of the larger one. It alleged that the smaller note had been paid, and on information anil belief denied the allegations of the complaint as to the monjey loaned.: From the date of the joining of issue until the entry of the judgment the case was noticed for trial by the plaintiff and frequently placed on the day calendar of the court, but was marked “ off ” from time to . time at the defendant’s request, in reliance by the plaintiff’s ■ attorney upon promisesj of settlement. It is undisputed that the defendant finally abandoned whatever defense he may have had, under the advice of his own counsel, and permitted judgment to be entered. Nio appeal was ever taken, nor has the validity or integrity of| the judgment been assailed by the defendant in any way until the making of the motion which has resulted in the order now appealed from.

It appears from the papers that the defendant’s sole financial resources consist of income arising from certain trust funds which, at the time of jfche entry of the judgment and until recent amendments to section 1391 of the Code of Civil Procedure, were exempt from execution. By virtue of that section, however, as amended, a percentage of the income is now subject to levy; and this fact appears to be the only discoverable reason why the defendant desires at this , late day to endeavor to defeat the plaintiff’s claim.

Some time prior to the year 1909 the.plaintiff obtained an order in the First Department granting her leave to issue an execution against the defendant’s income, and a motion made by the defendant to vacate the. order was denied.at Special Term. The order was reversed on appeal by the Appellate Division, and the motion to vacate the order granting leave was granted. (See Demuth v. Kemp, 130 App. Div. 546.) In the proceedings then taken no claim appears to have been made by the defendant that the plaintiff’s judgment was an unjust or improper onej, the sole assault being made on the plaintiff’s right to collect it from the defendant’s trust income, and the decision of the Appellate Division rested on the proposition that section 1391 of the Code did not apply to a trust estate created before the section was amended. In June, 1910, the First Department decided the case of Brearley School, Ltd., v. Ward (138 App. Div. 833), holding that the amendment to section 1391 of the Code, which permits the' issuance of an execution against trust funds, was retroactive, and could be enforced against the proceeds of a trust created before the passage of the act.; and the motion now under consideration was made after that decision, and after an appeal therefrom had been argued in the Court of Appeals. The decision just cited was affirmed by the Court of Appeals March 28, 1911 (201 N. Y., 358).

I think the case at bar is controlled by the reasoning in Sutter v. City of New York (106 App. Div. 129). . The defendant has had his day in court. He chose not to avail himself of the right to be heard against the plaintiff’s claim,, and, as was said in the case cited, the judgment rendered against him “cannot be vacated, as though taken by default.” The judgment- was the result not of- a default, but of a voluntary abandonment. (See Herbert Land Co. v. Lorenzen, 113 App. Div. 802, 805.) I know of no rule or principle applicable to the orderly administration of justice which would pe23n.it a defendant to confess judgment when he thinks he can defeat his opponent on execution with a reserved option of litigating the claim at any time afterwards when chance or circumstance may threaten to render it collectible.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs..

Jenks, P. J., Burr, Woodward and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.  