#### Sophia L. Mattern, Plaintiff, *against*Russell Sage, Defendant.

(Special Term.)

(Decided November 26th, 1888.)

A judgment should not be set aside on the ground of fraud in procuring it, on a motion made after the expiration of the year limited for making such motions on grounds of mistake, etc., (Code Civ. Pro. § 724), or irregularity (§ 1282), and not based on error of fact (§ 1283). The inherent power of the court to set aside judgments obtained by fraud should be exercised by action, not on motion.

Motion to vacate a judgment.

The action was brought for an accounting of transactions in stocks conducted by defendant as broker for plaintiff. Upon trial before a referee, judgment was rendered for defendant. Defendant moved to vacate the judgment and reopen the trial, on affidavits that defendant’s counsel had represented that if plaintiff’s counsel would be lenient and not too exacting in the trial of the case, it would be better for plaintiff, as defendant would then settle with her.

*Henry S. Bennett,*for the motion.

*Timothy E. Neville,*opposed.

*39Bookstater, J.

No ground for the relief asked for is stated in the notice of motion, but as defendant’s counsel does not make any objection to it on that account, I will not. If the moving papers disclose any ground for vacating the judgment, it consists in the alleged fact that defendant’s counsel promised plaintiff that, if he would so conduct the case as to. allow judgment to be entered in defendant’s favor, the latter would pay plaintiff’s claim.

In *Coster*V. *Clark*(3 Edw. Ch. 405), it was held that there could be no rehearing of a decree entered by consent of counsel, although made without the party’s consent, and that the remedy was against the counsel; and if the decree was obtained by fraud or covin, relief was by original bill; citing a number of cases. As far as I am aware, this continued to be the uniform practice until the adoption of the Code. That authorizes courts, on motion, to relieve a party from a judgment entered against him through his mistake, inadvertence, surprise, or excusable neglect (§ 724 ), and also to set aside a judgment for irregularity (§ 1282 ) if the motion is made within one year from the notice of the entry of judgment. This motion was not made until the 18th of October, 1888, although judgment was entered on the 15th of June, 1887, and an appeal taken on the 14th of July, 1887, which is still pending. The motion would have to be denied, for the reason that it was not made in time, if based on any of the grounds contained in these sections.

As far as I know, the only other case provided in the Code where a judgment may be set aside on motion is for an error in fact not arising on the trial (§ 1283), which must be made within two years from the filing of the judgment-roll (§ 1290.) The application in this case is not based upon any error of fact, but upon an alleged fraud.

It needs the citation of no authorities to show that courts have an inherent power to set aside judgments obtained by fraud, but they should only exercise this power by action, and not on motion (Story Eq. Juris. §§ 1573, 1575: Freeman Judgments, §§ 90 *et seq.; Jex*v. Jacob, 9 Daly, at p. 297). Cases may be cited where such power has been *40exercised on motion without objection, but it is dangerous to try a question of fraud on affidavits, and the practice should not be'encouraged. And this is specially true in a case where, according to the plaintiff’s claim, the fraud had for its object the deception of the court and the miscarriage of justice, and where, in order to make the alleged fraudulent agreement effective for any purpose, the attorneys on both sides must have been equally guilty.

The motion must, therefore, be denied, with $10 costs.