Wallace v. Berdell
| Decision Date | 08 March 1887 |
| Parties | FRANCIS B. WALLACE and another v. BERDELL and others. MARGARET C. WALLACE v. BERDELL. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Alfred Taylor, for appellants.
Bacon & Merritt, for respondents.
In the first of the above-entitled actions, the plaintiffs, composing the firm of Wallace & Phillips, recovered a judgment against Robert H. Berdell for about $9,000, and issued execution thereon. They had also issued an attachment in that action against the property of the defendant therein. After the issue of the execution, Wallace & Phillips instituted action No. 2, for the purpose of setting aside a conveyance of certain real estate which had been conveyed by Robert H. Berdell, the judgment debtor, to his son Charles P. Berdell, and for other relief. They succeeded in that action in the supreme court, and obtained a judgment directing the sale of the real estate for the satisfaction of the amount remaining unpaid upon the judgment of Wallace & Phillips, and that such judgment be declared to be a lien prior to all claim of Charles P. Berdell, and of Lizzie A. Berdell, in whose favor Robert H. Berdell had confessed a judgment, which was an apparent lien upon the property. The sale was made accordingly, and the property was bought in by Wallace & Murray for the benefit of the plaintiffs, and other judgment creditors of Berdell, for a sum sufficient to satisfy the judgments. The purchasers entered into possession, and retained such possession for several years. The execution and attachment which had been issued in action No. 1 were returned satisfied, and an entry was made on the docket of the judgment in No. 1 discharging it of record. Wallace and Phillips having both died, the action was continued in the name of the present plaintiff, as executrix of Wallace, the last survivor. On appeal to this court, the judgment in action No. 2, under which the sale had been made, was reversed, and a new trial ordered, and restitution was afterwards ordered to be made to Charles P. Berdell of the real estate sold, and of the value of the rents and profits during the time the purchasers had been in possession, (3 N. E. Rep. 769.) Restitution was accordingly made of the land, but the rents and profits have not yet been restored. The present motion was for an order requiring the clerk of Orange county to take from the files in his office the attachment and execution in action No. 1, together with the returns thereto, and deliver them to the late sheriff of said county, and to cancel the record of the satisfaction of the judgment, and the returns to said attachment and execution. The motion was granted at special term. The order was affirmed at general term, and this appeal is from such affirmance.
The principal objection made by the defendants to the order is that it was erroneous, in any view, to...
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