Hope a. Acker.

HOPE a. ACKER.

New York Superior Court; Special Term, October, 1858.

DISCONTINUANCE.-MOTION.

A discontinuance terminates an action to all purposes, and operates to dissolve an injunction.

In an action which has been discontinued and the costs paid to the defendant, the court will not entertain his motion to dissolve an injunction which had been obtained before the discontinuance.

If such facts give the defendant a right to damages upon the undertaking, he must establish it by action thereon.

Motion to dissolve an injunction.

On the 26th of June, 1858, the plaintiff served on the defendants' attorneys a notice stating "that the plaintiff discontinues the above entitled action against the defendants therein, and hereby offers to pay them, the said defendants, their taxable costs which they have incurred in this action up to this date." The notice was dated on the day it was served. The plaintiff had obtained an injunction, which was in force when this notice was served. On the 1st of July, 1858, the plaintiff paid to defendants' attorneys the defendants' costs of the action, which had been adjusted by consent at $20.85, and took a receipt therefor. On the 21st of September, 1858, the defendants' attorneys served a notice of this motion to be made on the 27th, for an order" that this action be discontinued, and that the injunction order heretofore made in this action, on or about the 12th of June last, be vacated." The notice stated that such motion would be made on the "notice of discontinuance," and on the "injunction order and the pleadings and proceedings in this action."

H. Smales, for the motion.

L. Chapman, jr., opposed.

BOSWORTH, J.-The notice of discontinuance served, and payment of defendants' costs of the action, put an end to the action, and it thenceforth ceased to be an existing or pending suit for

Kendall a. Hodgins.

any practical purpose. I shall not examine the papers on which the notice of this motion states it will be made, in order to determine the question whether the plaintiff, so far as it can be determined upon such papers alone, was entitled to the injunction. The order of discontinuance, to be entered on this motion, will not, therefore, contain any clause which may be construed as imputing that the court has decided a question which it has not examined the action is terminated, and with the discontinuance of the action the injunction ceased to operate. If these facts give the defendants a right of action upon the undertaking, they have only to bring a suit and recover their damages: the court will not hear a motion in an action which has been discontinued, and the costs of which have been paid to and received by the party entitled to them, for the mere purpose of deciding whether the plaintiff had a right to the injunction on the pleadings and proceedings which had been had in the action. An order will be entered declaring the action discontinued, without further costs thereof to either party as against the other.

KENDALL a. HODGINS.

New York Superior Court; General Term, October, 1858. CONFESSION OF JUDGMENT.-MOTION.-MOVING PARTY.

A statement, made for the purpose of entering a judgment under sections 382 and 383 of the Code, which states, as the facts out of which the debt arose, "that heretofore at the city of New York, I (Hodgins) made my certain promissory note for the sum of two thousand dollars, payable on demand, and that I have not paid said note, and that I am justly indebted to the plaintiff (Kendall) thereupon, in the said sum of two thousand dollars," is wholly insufficient to authorize a judgment to be entered upon it.

A judgment entered on such a statement, and an execution issued on such a judgment may be set aside, on the motion of a bona fide purchaser of lands on which the judgment is an apparent lien, as to such purchaser and the lands so purchased, and such lands be declared to be freed and discharged of and from the apparent lien of such judgment, and of and from any and every proceeding whatsoever, under and by virtue of or founded on such judgment.

Kendall a. Hodgins.

Appeal from an order setting aside a judgment and execution.

This action came before the court at general term, on an ap peal by the plaintiff from an order made by Mr. Justice Woodruff, on the 8th of July, 1858, vacating a judgment entered in favor of the plaintiff against the defendant, under sections 382 and 383 of the Code. The order was made on the application of H. F. Pohlman, a bona fide purchaser, from said defendant, of lands on which such judgment was an apparent lien, and which lands the plaintiff had caused to be advertised to be sold under an execution issued on such judgment. The statement and confession on which the judgment was entered, read as follows:

TITLE OF THE CAUSE.

I do hereby confess judgment in this cause in favor of Josiah F. Kendall for the sum of two thousand dollars, and authorize judgment to be entered therefor against me.

This confession of judgment is for a debt justly due to the plaintiff arising upon the following facts:

That heretofore at the city of New York I made my certain promissory note for the sum of two thousand dollars, payable on demand, and that I have not paid said note.

And that I am justly indebted to the plaintiff thereupon, in the said sum of two thousand dollars.

[Verification.]

JOHN HODGINS.

Judgment was entered in this court on said statement, on the 5th of October, 1856, for $2000, with $5 costs, and a transcript of the judgment was filed, and the judgment was docketed in the office of the clerk of Queens county on the same day.

The deed from the defendant and his wife to Pohlman is dated the 10th of October, 1856, and was recorded on the 28th of October, 1856, in Queens county; the real estate conveyed by it being situate in that county.

Pohlman's attorneys were employed by him to search the title of the property so conveyed, and for liens and incumbrances upon it; and they caused the clerk of Queens county to

Kendall a. Hodgins.

search for conveyances, mortgages, judgments, and other liens and charges upon the property. The clerk made a search, and certified the result; and by his certificate it appeared that no judgment against Hodgins, docketed in Queens county, was found. Pohlman believing the property to be free from any such encumbrance, and having no notice of facts calculated to excite a suspicion to the contrary, bought the real estate, and took a conveyance of it, subject to a mortgage upon it for $1000, and subject also to a lease of the lots, for the price or sum of $2750. Pohlman paid to Hodgins $1750 in cash, and assumed the payment of the said mortgage as the balance of the purchase money. The plaintiff having caused an execution to be issued on said judgment, and the lands so bought by and conveyed to Pohlman to be advertised for sale, Pohlinan, on affidavits showing the facts before stated, and on notice, moved for and obtained an order vacating the said judgment as to him, and as to the lands so conveyed to him, and setting aside the execution unconditionally, and an advertisement of a sale of said lands under said execution, and declaring the said lands to be freed and discharged of and from the apparent lien of said judgment, and of and from any and every and all proceedings whatsoever, under and by virtue of the same. From that order the plaintiff appealed to the general term.

H. D. Lapaugh, for the appellant, insisted that none but judginent creditors could move to vacate the judgment; that the plaintiff, who was a mere grantee under a deed containing full covenants that the lands conveyed were free and clear of all incumbrances (except the mortgage and lease recited in it), was not in a position to make such a motion; and that the execution could not be set aside absolutely.

J. B. Scoles, for the respondent.

BY THE COURT.*-BOSWORTH, Ch. J.-The statement on which the judgment was entered is insufficient. (Chappel a. Chappel, 2 Kern., 215.)

H. F. Pohlman, who moved to vacate it, is a bona fide purchaser of premises on which it is an apparent lien, and which

• Present, BosWORTH, Ch. J., and HOFFMAN, WOODRUFF, and PIERREPONT, JJ.

Kendall a. Hodgins.

the plaintiff had caused to be advertised to be sold under an execution issued on such judgment.

The effect of an insufficient statement, or who may move to vacate a judgment entered on a statement which does not authorize such entry, the Code has not declared. (Code, §§ 382, 383, 384.)

In Dunham v. Waterman (6 Abbotts' Pr. R., 357, 366), SELDEN, J., in speaking of the section of the Code which prescribes the particulars essential to a sufficient statement, and of its design and meaning, employs this language:

"The provision does not relate to a mere matter of form, or the manner of conducting a judicial proceding; but is one which affects substantial rights. It virtually constitutes a condition precedent to the right of the party to confess the judg ment at all. Although the Code does not, in terms, enact, as was done by the act of 1818, that a judgment confessed, without a compliance with its provisions, shall be decreed and adjudged fraudulent' in respect to other bona fide judgment creditors; yet, considering the object in view, it is plain that such must be its meaning."

Section 6 of the act of 1818 declares that if a judgment be confessed without complying with the provisions of that act, "such judgment shall be taken, decreed, and adjudged fraudulent, as respects any other bona fide judgment creditors, and every bona fide purchaser for valuable consideration of any lands bound or affected by such judgment." (Sess. Laws of 1818, ch. 259.)

If the object and meaning of the two statutes are the same, then it follows that the judgment in question is as absolutely fraudulent as against a subsequent bona fide purchaser, as against a subsequent judgment creditor. The right of the former to be relieved against it is as perfect as that of the latter.

It is settled that a judgment creditor may obtain relief against such a judgment by motion. (Chappell v. Chappell and Dunham v. Waterman, Supra.) Relief is granted on motion, because that is held to be an appropriate proceeding to obtain such relief; and because a judgment creditor is a person whom the statute was passed to protect.

But when it is once conceded, or is established, that a bona fide purchaser is protected by it equally with a judgment credi