(79 Hun, 13.)

#### FITZSIMONS v. FITZSIMONS.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Judgment—Satisfaction—Eight of Judgment Creditor.

A judgment creditor may impose conditions on the satisfaction of a judgment entered by default, though grounds may exist for opening the default and permitting defendant to answer.

Appeal from special term, Monroe county.

Action by Caroline V. Fitzsimons against Francis P. Fitzsimons. From an order vacating a satisfaction of judgment as to Fitzsimons, reinstating such judgment, defendant, Fitzsimons, appeals.

Reversed on condition.

Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and HAIGHT, JJ.

William Kernan, for appellant.

Frank J. Hone and Henry J. Sullivan, for respondent.

HAIGHT, J.

The plaintiff is the widow and executrix of Charles Fitzsimons, who died in 1888. The defendant, Francis P. Fitzsimons, is a son of Michael Fitzsimons, a brother of said Charles Fitzsimons. Michael died in April, 1890. In 1884, Michael Fitzsimons failed in business, and thereafter continued insolvent and transacted business in the name of Francis, his son, who signed all the papers requested by his father, in ignorance of their con*511tents and of the personal obligations incurred by him. Charles, in his lifetime, assisted his brother financially, and, at the time of his decease, provided in his will that his executrix should continue to indorse his brother’s paper as he himself had done, to the amount of $10,000, to aid him in his business pursuit, and, if loss be made to the estate by such indorsement or otherwise, it should be charged to the whole estate. Pursuant to such direction, the plaintiff, as such executrix, continued to indorse Michael’s paper until his death. It further appears that Michael Fitzsimons was interested in the Clark mills, and that at the time of his failure these mills were sold upon a foreclosure, and bid in by Milton H. Thompson; that Thompson thereupon conveyed the property to Francis Fitzsimons, and that Francis executed a bond and mortgage thereon to Thompson for $37,500, and also another bond and mortgage on the property of Charles Fitzsimons for $12,500; that thereafter, and in February, 1885, the Clark Mills Manufacturing Company was incorporated, with a capital stock of $150,000, with Michael Fitzsimons as its president, and Francis P. Fitzsimons deeded the property so received by him from Thompson to the corporation, for which the stock of the company was issued to him. In 1890 the córporation became insolvent, and Thompson foreclosed his mortgage upon the property, and bid the same in upon the sale. Thereupon the plaintiff brought an action against Francis and the Clark Mills Manufacturing Company, upon the bond accompanying the mortgage running to her testator, for $12,500, and also brought another action upon a promissory note made by the Clark Mills Manufacturing Company for $1,200, indorsed by her, and which she had been compelled to pay. Judgments were recovered on default in these actions, and upon the $1,200 judgment an execution was issued to the sheriff, who, by virtue thereof, levied upon certain personal property in the mills of the defendant, including two boilers therein, and sold the same, which was bid in by her for the sum of $1,200. In September, 1890, Francis P. Fitzsimons and Mary S. F. Sweeney, a daughter of the plaintiff, contracted with Thompson to purchase the property bid in by him at the foreclosure sale, and also contracted to resell the mill to Hind & Harrison Plush Company at a very advantageous price; and, in order to enable them to carry out these transactions, Francis, under date of November 10, 1890, wrote Hone, one of the attorneys for the plaintiff, asking him to procure a satisfaction of the judgment procured against him upon his bond, then amounting to $16,000 and upward. At this time the plaintiff was in New York, and Hone immediately addressed her a letter, asking her to telegraph him on receipt what to do, saying that it was desirable that the matter should be closed before Saturday. It also appears that Bernard J. Sweeney, the husband of the plaintiff’s daughter, who was concerned with the appellant in the repurchase and resale of the mills, saw the plaintiff, his mother-in-law, in New York in reference to the matter, and received certain instructions and communications in reference thereto, which he was directed to explain to Mr. Hone, her attor*512nev; that he returned to Utica, where he met Mr. Hone, had a •consultation with him in reference thereto, and thereafter Hone, as one of the attorneys of record, executed a satisfaction of the judgment, which it is claimed was without authority from the plaintiff, and which was vacated by the order appealed from.

We think we must treat the judgment as valid. If, as is claimed, when the action was commenced against Francis, the plaintiff represented to him that she made no personal claim against him, and would not let the judgment stand in his way in business, and would satisfy it at any time he "wanted it, and if, in consequence of such representations, he neglected to interpose a defense, good •grounds may exist for opening the default, and permitting him to answer; but such a motion is not now before us. The judgment was regularly obtained and entered upon default, and, treating it as valid, the plaintiff had the right to impose such conditions to its satisfaction by her as she saw fit, even to Ms payment thereof in full. What were the conditions imposed by her? It is quite possible that there was no intentional fraud practiced upon her in procuring the satisfaction of the judgment. It is, however, quite apparent that her instructions were not understood, or at least not carried out, by the persons charged therewith, the effect •of which was to deprive her of the judgment she held against the appellant. It appears that the appellant was the nephew of the plaintiff, and that their relations up to this time had been friendly; that, upon the execution issued upon her $1,200 judgment, she had purchased the personal property found in and about the mills, together with the boilers, which was worth about $7,000; that this property would make good her judgment upon the note of the corporation indorsed by her, and would also satisfy, in part, the :$16,000 judgment. It is also apparent that at this time she did not intend to enforce the judgment against him personally. She so states in her letter to Hone of November 16, 1890; but it appears that the boilers were in the mill, and that the purpose was to convey them with the mill to the plush company. It seems that an application had been made to her for a loan of $5,000, to •enable Francis and plaintiff’s daughter, May, to purchase and resell the mill, and that the plaintiff was willing to make the loan. Her terms in this respect were specifically stated in the instructions accompanying her letter of November 14th, to her attorney. In it she says:

> “Bernard (referring to her son-in-law) will explain to you that they need, to Complete their sale, the sum of $5,000. I am willing to advance that amount, upon terms which I will write on a separate sheet. * * * In making these terms, I have in mind the notes I have paid, and the facts that my chattels there must be worth, including the boilers, about $7,000.”

Upon the separate sheet was the following:

> “I will advance $5,000 to complete the purchase, providing—First. The whole property be conveyed to me by" deed from Mr. Thompson, and that the clear title of the whole be assured. Secondly. That the sale of no part which is now contracted for by the new purchasers be made by me, the purchase money to be paid to me, and the new mortgage of $25,000 to be taken by me, in my name; the whole to be held by me until I am ready to convey *513to Frank and May. Thirdly. All taxes, insurance, and expenses of purchase to be paid by Frank and Bernard. In consideration of the above—First. I promise to release Frank from the judgment. Secondly. I give to May my entire claim on the boilers and other chattels. Thirdly. At any time, upon payment to me of §12,000, I promise to convey to Frank and to May, share and share alike, the remainder of the Clark’s mills property, namely, that not included in the present sale to the new purchasers, and also the mortgage for §25,000, above mentioned. Fourth. The agreement to sell in last claim is to hold good for two years. If in that time the §12,000 is not paid, I shall reserve the right to dispose of it to the best advantage possible.”

It appears that other arrangements had been made, so that the loan from her of $5,000 was not made, and her proposal was not accepted. It is, however, evident that she made a claim for $7,000 upon the boilers, and that she was willing to discharge the judgment upon receiving payment or security therefor. In her letter of November 16, 1890, she says:

> ‘‘It is true I did not intend to enforce the judgment against Frank personalty, but, finding a disposition to take possession of the most valuable chattels remaining to me as an offset for my losses, I sent word to you by Bernard that my consent for the release of the judgment was given for the purpose of removing an obstacle to the sale of the mill, and only upon condition that my interest should be otherwise fully protected.”

As we understand, she demanded payment for the boilers, or security therefor, as a condition for discharging the judgment. As we have shown, this condition she had the right to impose. It is quite possible that she may not have had good title to the boilers, for the reason that they were a part of the realty, and passed under the foreclosure sale; but, whether she did or not, it makes no difference, for she had the right to demand payment of the $7,000 before she discharged the judgment. Exact justice may lie done as between the parties by carrying out demands in that regard. The order appealed from should be affirmed, with $10 costs and disbursements, unless the appellant, within such time as shall be fixed by the special term upon notice, pays to the plaintiff the sum of $7,000, with interest thereon from November 14, 1890; and, if such payment is made, the order appealed from is reversed, and motion denied, without costs of this appeal to either party. All concur.