Tomasello Bros. Inc. v. Friedman
| Decision Date | 27 May 1968 |
| Citation | 57 Misc.2d 817,293 N.Y.S.2d 688 |
| Parties | TOMASELLO BROS. INC., Plaintiff, v. Jacob W. FRIEDMAN, Samuel Gutterman, Julius Gutterman and 24 Rock Corp., Defendants. ; Queens County, Part I |
| Court | New York Supreme Court |
This is a motion referred from Queens County to vacate an order of attachment on the ground that the complaint fails to state a cause of action.
Some years ago the plaintiff, a mason contractor, contracted to do the brick work on some multiple dwellings to be erected by the corporate defendant, 24 Rock Corporation, in Queens County. The individual defendants are the principals of the Corporation.
When the buildings were completed, the exterior walls leaked and 24 Rock Corp. sued the plaintiff claiming breach of warranty and use of an improper mortar mix. A jury returned a verdict in favor of 24 Rock Corp. for the sum of $80,000, which, with interest, now amounts to over $94,000. A bond for $100,000 was posted and an appeal taken. The judgment was affirmed by the Appellate Division (26 A.D.2d 772, 272 N.Y.S.2d 741) and leave to go to the Court of Appeals was denied (18 N.Y.2d 580, 274 N.Y.S.2d 1028, 220 N.E.2d 816). The Appellate Division has denied reargument (29 A.D.2d 694, 289 N.Y.S.2d 391) and Special Term has denied a new trial. 24 Rock Corp. has recovered summary judgment in an action on the undertaking against the Bonding Company which is now on appeal.
This action is based on a charge of fraud committed by the defendants in procuring the above judgment by perjured testimony which grossly exaggerated the damages which, in fact, was no more than the $7,500 which was actually paid to repair the wall. The proceeds of the appeal bond itself are the subject of the present attachment.
Taking these charges at face value, as we must on this motion, the question is may such an action be maintained?
I conclude that it may not. It is the settled policy of the law not to allow the effectiveness of a judgment to be impeached in another lawsuit, even where perjury and fraud were used to procure it. The remedy for that lies exclusively in the lawsuit itself, for instance, by a motion for a new trial. Such an application was made in this case, but the Judge who entertained it, saw fit to deny the motion and that determination, too, has been affirmed by the Appellate Division. (29 A.D.2d 660, 286 N.Y.S.2d 630).
Plaintiff herein seeks to bring itself into an exception to the above rule, to wit, a line of cases which allow a separate challenge by another suit where the fraudulent scheme is broader than merely one to use perjury to obtain a wrongful judgment. However, simply charging that the defendants conspired to do what it is claimed they did and that they entered into the conspiracy Before they did it, avails nothing. It boils down to...
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Barrett v. United States
...to come within the meaning of this rule. See Shaw v. Shaw, 97 A.D.2d 403, 467 N.Y.S.2d 231 (2nd Dept.1983); Tomasello Bros., Inc. v. Friedman, 57 Misc.2d 817, 293 N.Y.S.2d 688 (1968), aff'd 32 A.D.2d 652, 301 N.Y.S.2d 436 (2nd Dept.1969). See also Barrett v. State, 85 Misc.2d 456, 462, 378 ......
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Michigan Associates v. Emigrant Sav. Bank
...a collateral attack on the October 31, 1972 court order. Jacobowitz v. Metselaar, 268 N.Y. 130, 197 N.E. 169; Tomasello Bros. Inc. v. Friedman, 57 Misc.2d 817, 293 N.Y.S.2d 688, aff'd 32 A.D.2d 652, 301 N.Y.S.2d 436; Kology v. Maplewood Homes, Inc., 36 A.D.2d 538, 318 N.Y.S.2d 566; see also......
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Banco Do Brasil v. Madison S. S. Corp.
...judgment was obtained. Had the judgment been obtained in the New York courts, such procedure would be mandatory. (Tomasello Bros. v. Friedman, 57 Misc.2d 817, 293 N.Y.S.2d 688). The power of a court to correct its own judgments is inherent (Pacific RR Co. v. Missouri Pacific RR, Supra; Krip......
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Kology v. Maplewood Homes, Inc.
...here attempted. The general rule is that the effectiveness of a judgment may not be impeached in another lawsuit (Tomasello Bros. v. Friedman, 57 Misc.2d 817, 293 N.Y.S.2d 688, affd. 32 A.D.2d 652, 301 N.Y.S.2d 436). In Herpe v. Herpe, 225 N.Y. 323, 327, 122 N.E. 204, 205, it was 'The rule ......