#### Robert D. Anderson, *et al.*plaintiffs, *vs.*Anastasius Nicholas, defendant.

1. The entry of satisfaction of a judgment hy the clerk, upon filing a satisfaction piece, signed and acknowledged by the plaintiff, and. therefore fully warranting such entry, may be disregarded by a plaintiff when such satisfaction piece was executed upon a condition which had not been performed, or was improperly obtained and filed; and he may issue execution upon his judgment as unsatisfied.

2. A judgment does not, by the filing of the satisfaction piece and canceling the docket under such circumstances, so far lose its efficacy, that no execution can be issued upon it. If the plaintiff chooses to disregard the entry of satisfaction and to issue an .execution, the writ will be deemed regularly issued.

3. The proper and regular course, in such á case, however, is to move to take the satisfaction piece off the files, cancel the entry of satisfaction, and-restore the docket, before issuing execution.

(Before Robertsok, Ch. J, at special term,

November 1, 1865.)

*631These were two motions, made together, on behalf of the defendant, one for leave to renew a former motion made on his behalf to set aside a judgment obtained by the plaintiff against him in this court, and an affirmance of such judgment by the Court of Appeals made the judgment of this court,- and for general relief, and if such leave should he granted, the other was to set aside such judgments or obtain other relief. Such motions were partially heard upon affidavits before one of the justices of this court, by whom an order of reference was made directing the referee named therein to take proofs whether the judgment in question had been lawfully discharged, and report the same with his opinion thereon. In the same order the judgment entered upon the remittitur from the Court of Appeals was opened, upon the payment by the defendant of the costs of this action in the Court of Appeals, upon the appeal from such judgment, ten dollars as costs of the motion and the costs of filing the remittitur from the Court of Appeals, and entering judgment of affirmance in this court in pursuance thereof. The plaintiff now moves to confirm such report, and opposes granting any relief to the defendant; the latter asks for a perpetual stay of execution under the first judgment, or such relief-as he may be entitled to.

The judgment in question was entered in this court in July, 1859. From it an appeal was taken by the defendant to the Court of Appeals, during the pendency of which appeal, on the second of May, 1862, the plaintiff Anderson executed and acknowledged a satisfaction piece of such judgment; which, with a consent to discontinue Iris appeal, he placed in the hands of a Mr. Monroe to be delivered by him to the defendant upon certain specified conditions. By an instrument simultaneously delivered by Monroe to the plaintiff Anderson, signed by the former, after acknowledging the receipt of such papers, he stated that they were to remain in his hands until *“ certain negotiations*between ” the defendant *“*and a Mr. Robinson for a musket contract from the government *are closed*,” when he was to deliver such papers to the defendant and to deliver to the plaintiff proof of the dismissal of a suit *632against his son. The only negotiation between Mr. Robinson ■ and the defendant for a musket contract with the government, then being carried on, was one relating to the obtaining by the latter of an interest in a contract of that kind .owned by the former, and raising money to carry it out. Such negotiation was terminated by the. failure of the defendant to furnish security for the performance of such contract when demanded by Mr. Robinson. Mr. Monroe, however, at some time before the sixth of May, delivered such satisfaction piece to the defendant, who filed it on such last mentioned day, and the clerk of this court forthwith entered *satisfaction*upon the docket of such judgment.. After such entry of satisfaction, the defendant’s attorney on the appeal, was disbarred and died, and the defendant, in the presence of tne plaintiff’s attorney, signed 'and delivered to him a written appointment of the same Mr. Monroe as his attorney. Upon filing such appointment and proof of its execution, an order was made in the Court of Appeals authorizing the substitution ; at whose instance does not appear. Such judgment was subsequently affirmed by the Court of Appeals and a remittitur sent to this court, by which ’ such judgment of affirmance was made the judgment of this court. In such judgment of affirmance it is recited that the same was given upon hearing counsel for the appellant. Mr. Reynolds, the counsel named, deposed that he never was employed in such case, and never appeared therein, .and knew nothing of it, which affidavit is uncontradicted. The defendant also testified that he never employed Mr. Monroe as his attorney, which is also uncontradicted. Notice of hearing in the Court of Appeals, after such substitution, was served on Mr. Monroe only.

The plaintiff’s attorney (Charles W. Prentiss, Esq.) claimed . to own the judgment in question by virtue of an oral assignment of it by the plaintiff Houghton, who is now deceased, and also to have a lien on it for his costs and counsel fees in this action and in other matters. He also insists and testified that notice was given to the defendant of such ownership and lien two years before the execution of such satisfaction piece, *633which was not contradicted. The only evidence of such oral assignment was the testimony of the attorney himself, as to the verbal agreement with the plaintiff Houghton. His testimony was objected to as being of conversations with a deceased assignor, but was received by the referee, subject to objection, which is now renewed.

Evidence was given of a different condition for the delivery of the satisfaction piece from that stated in the writing signed • by Mr. Monroe. He himself stated that such satisfaction piece was to be delivered upon the defendant’s signing a contract with the plaintiff Anderson, relative to such government gun contract, which he did. That contract, however, is dated on the 28th of April previous. On the other hand, a Mr. Rathbone stated that the agreement was, that such satisfaction piece was not to be delivered to the defendant until he had completed the negotiation with Mr. Robinson, and guaranteed the raising of money sufficient to carry out the contract with the government. The plaintiff Anderson testified to the same effect.

*Charles C. Prentiss,*for the plaintiff.

*B. Butler,*for the defendant.

Robertson, Ch. J.

The primary motion having virtually been permitted to be renewed by the order already made, two questions present themselves in this case: *First.*Was the satisfaction piece, upon which the entry of satisfaction was made, executed upon a condition which has been performed ? *Second.*If it has, had the plaintiff Anderson a right to satisfy such judgment without the consent of his attorney and assignee, Mr. Prentiss ? The reference to the referee being merely incidental to take testimony, and report his opinion, he had no power to decide any thing, and the whole question is open before me as res *integra*upon the affidavit and depositions taken before him. The weight of oral testimony, if at all admissible to determine the terms of the condition upon *634which the satisfaction piece was delivered, does not change those contained in the instrument signed ’ hy the depositary. There can he no doubt a negotiation with *Mr. Robinson, who had the government contract,*and not one with 'the plaintiff Anderson, was referred to, and that one is clearly identified. The only difficulty is in the phrase “ closing the negotiation,” which undoubtedly means, under the circumstances, *closing it successfully by a contract.*This never was done, and the satisfaction piece was, therefore, not properly delivered to the defendant, and the docket was improperly canceled.

But a difficulty occurs, from the fact that the docket of the judgment has been canceled, pursuant to the statute, (2 *R. S.*362, §§ 22, 24.) hy the clerk, on the filing of a proper satisfaction piece, signed and duly acknowledged hy the party. This raises the question whether, by the filing of the satisfaction piece and canceling the docket, the judgment has so far lost all efficacy that no execution can be issued upon it. For it is very clear that, if so, no one has a right to abuse the process of the court hy issuing execution and taking the risk of being afterwards able to prove that the satisfaction piece was improperly obtained and filed, the proper and regular course being to move to take the satisfaction piece off the files, cancel the entry of satisfaction, and restore the docket. In the case of *Taylor,*v. *Ranney,*(4 *Hill,*619,) it was held, that where an execution' has been returned satisfied, which is entered on the docket, an intermediate *bona, fide*purchaser from the defendant after such return, hut before a cancelation of such entry, was protected, and a distinction was made between such case and that of an entry of satisfaction on the docket, after the filing of a forged satisfaction piece, as in *Lowndes*v. *Remsen,*(7 *Wend.*35.) In that case such a forged satisfaction piece being filed and satisfaction entered thereon upon the docket, it was held not to protect a sheriff from an action for an escape from imprisonment on an execution previously issued, because the satisfaction had not been entered on the roll. The 291st section of t'he Code leaves the existing provisions of law relating to executions and their incidents, and the powers and *635rights, as well as duties, of officers therein as they were before its enactment. And, although with some hesitation upon the question whether a satisfaction piece, actually signed by the party, and which complies with the statute in all respects, and, therefore, fully warrants the clerk in making the entry, can be disregarded, I feel bound to follow the decision in *Lowndes*v. Remsen, and consider the execution in question regularly issued, although a less orderly .proceeding than a prior application to take the satisfaction piece off the files, when the whole question could have been determined.

These views render it unnecessary to consider the question of the claim of'Mr. Prentiss, including that of notice by him to the defendant of it, before the satisfaction piece was given, as well as the mysterious employment of an attorney and counsel in the Court, of Appeals, without their knowledge, and the entry of an order of substitution in that court by the attorney of the opposite party, which are matters more proper for the cognizance of that court, on a motion to recall thfe remittitur and set aside the judgment of reversal.

The motion to set aside the execution, or interfere with the judgment originally entered, must be denied, without any other costs but the fees of the referee, to be taxed as disbursements.