Hubbell v. Hardy

On March 8, 1915, the defendant Mary F. Hardy executed and delivered to the plaintiff herein an assignment of said *237defendant’s claim against her deceased husband’s estate to the extent of $2,150. The consideration for this assignment is claimed to have been the advancement of moneys to defendant. On March 10, 1915, said defendant confessed judgment in favor of plaintiff for the same amount. In October, 1915, defendant moved to set aside the judgment by confession. This motion was denied and, so far as we are advised, no appeal was taken from the order denying it.

In February, 1916, one Lillian M. Brown, a subsequent judgment creditor of the defendant, moved upon affidavits in this action (to which she is not a party) to set aside the above-mentioned judgment, and from the order granting her motion an appeal has been taken to this court and has been decided herewith. (See Matter of Brown [Hubbell v. Hardy], 93 Misc. Rep. 672; mod., 174 App. Div. 857.)

In March, 1916, the defendant moved to vacate and set aside the assignment aforesaid, and from the order granting her motion this appeal has been taken.

That the order was without authority, we think, there can be no question.

The assignment is a formal document, apparently properly executed and purporting to rest upon sufficient consideration. It was not given in the course of any judicial proceeding. It is entirely irregular to vacate and annul it summarily by a motion founded on affidavits. If it is open to attack for any cause plaintiff is entitled to insist that such attack shall be conducted by an action legally instituted and prosecuted according to the rules governing such an action.

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Clarke, P. J., Laughlih; Smith and Davis, JJ., concurred.

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