Where a settlement was obtained by fraud of the adverse party, before judgment was perfected, an entry subsequently made, in disregard of such settlement, was refused to be vacated. Marquat vs. Mulvy, 9 How., 460.

A second judgment for the same sum, though irregularly entered, was allowed to stand, where the debtor had contrived, by fraud, to procure satisfaction of one previously taken. Weed vs. Pendleton, 1 Abb., 51.

Where the conduct of a defendant, seeking to vacate a judgment for want of due service on him, had been evasive, the judgment was directed to stand as security, though he was allowed to come in and defend on terms. Southwell vs. Marryatt, 1 Abb., 218.

And a motion of this nature was denied altogether, where the defendant, originally cognizant of the irregular service, had delayed his application until after judgment and execution. Hilton vs. Thurston, 1 Abb., 318.

A question, as to irregularity, must be raised by motion, in the court in which the judgment has been entered. It cannot be raised, upon appeal to a higher tribunal. Ingersoll vs. Bostwick, 22 N. Y., 425.

§ 274. Opening, as Matter of Favor.

Applications of this nature fall more peculiarly under the powers conferred by section 174, especially that part of it providing that the court "may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him, through his mistake, inadvertence, surprise, or excusable neglect."

This subject has been already touched upon incidentally, under many of the heads above entered upon, especially under those of judgment upon inquest, or by default, and it will be here considered only in its more general aspect.

The proceedings for the purpose are substantially the same as those on a motion on the ground of irregularity, as treated of in the last section. The application must be noticed, grounded on affidavits, brought on, and disposed of in the same manner, and, on the relief being granted, the same measures must be taken by the moving party, to procure a due entry of the vacatur of the judgment, if granted, in order to discharge its lien. If, on the contrary, the judgment be directed to stand as security, the entry and service of the order, is all that will be admissible, until further action by the court. The motion must be noticed for a special term, but, in the first district, may be made to a justice out of court. See Lowber vs. Mayor of New York, 5 Abb., 325.

The moving affidavit should, in all cases of motion, on the part of the

defendant, comprise the substance of an affidavit of merits, unless one has been already filed and served. Where the application is to open a judgment taken by default, the nature of the proposed defence should be disclosed, either by substantive statements in the affidavit, or by preparing, and serving with the moving papers, a copy of the proposed answer. The date of the entry, or service of notice of the judgment, should in every instance appear. The case must also be clearly brought within some one or more of the four grounds of motion prescribed by section 174, and circumstances must be stated in detail, to substantiate this, by sufficient allegations of fact; and, if the motion is not made immediately after the entry of judgment, the delay must be fully explained, so as to rebut the imputation of want of due diligence in the application. If the judgment is in course of actual or anticipated enforcement, a stay of proceedings should be applied for, either separately by ex parte proceeding, or by bringing up the question by means of an order to show cause.

In Wetmore vs. Law, 34 Barb., 515; 22 How., 130, it was held that a motion of this nature might be sustained, on proof of facts arising since the judgment was entered, of such a nature as to render it clear that such judgment ought not to be executed, provided those facts were undisputed.

The successful party has been held to be equally entitled to relief in this respect, as he would have been, in case the judgment had been rendered against him. He comes within the spirit, though not within the letter of the section. Montgomery vs. Ellis, 6 How., 326.

By 2 R. S., 246, sections 116, 117, special power was given to the Courts of Common Pleas to stay proceedings upon, and to set aside justices' judgments, on allegation that they were entered up with intent to defraud creditors, on application of any outside creditor, and the same power is doubtless possessed by the present county courts.

But, in the courts of higher jurisdiction, a judgment cannot be impeached on motion of a person not a party to the record, save only in the case of those entered on confession, to which, in fact, the provision of the Revised Statutes, above alluded to, primarily refers. See Jackson vs. Sheldon, 9 Abb., 127.

The Marine Court has special power to open upon motion, a judgment entered by default; but, when the application is made in relation to a case which has been tried, on the ground of fraud or irregularity, it can only be reached through its general term, by means of an appeal. Martin vs. The Mayor of New York, 20 How., 86; 11 Abb., 295; affirmed, 12 Abb., 243.

By chapter 489 of 1859, section 5, p. 1127, special authority is given to the comptroller of the city of New York to take means, in the name

of the corporation, to open and reverse any judgments obtained, or to be obtained against the latter body, by collusion, or founded on fraud.

The Marine Court cannot entertain an application of this description by way of motion, but only through the medium of appeal. Martin vs. The Mayor of New York, supra.

But, in the higher tribunals, relief of this nature has been extensively administered, and similar jurisdiction had been previously exercised, under the general powers of the court, on the application of the officer in question, in his character of an individual tax-payer, in Lowber vs. The Mayor of New York, 26 Barb., 262; 15 How., 123; 5 Abb., 484; affirming, with modifications, same case, 5 Abb., 325.

Relief, as above noticed, has been recently granted under this statute, in the following cases: Sharp vs. The Mayor of New York, 31 Barb., 572; 18 How., 97; 9 Abb., 243, holding the constitutionality of the statute, that it should be liberally construed, and that it is not neces sary that the grounds on which the judgment is impeached, should be shown by affidavits of the comptroller. Same case, 18 How., 213; 9 Abb., 426; 31 Barb., 578 (581); affirmed, 31 Barb., 578; 19 How., 193. The bare affidavit of the comptroller, of his belief, will not, standing alone, be sufficient; fraud or collusion must be shown, and, if shown, the judgment will be vacated. Outwater vs. The Mayor of New York, 18 How., 572; Joyce vs. The Same, 20 How., 439; 12 Abb., 309. See, as to the costs on such an order, former case, 20 How., 213. On such a motion, the merits will not be inquired into, if collusion, fraud, or irregularity be established. The People vs. The Mayor of New York, 11 Abb., 66. See also same case, 19 How., 289.

And even when the application is not brought strictly within the statute, the same relief may be granted on general grounds. Millimann vs. The Mayor of New York, 18 How., 542. See also Pettigrew vs. The Same, 17 How., 492.

Where the case presents any feature, tending to cast a suspicion of fraud, which may be established on a retrial, a judgment may be opened, on motion, instead of turning over the party aggrieved to a new suit to set it aside. Griswold vs. Griswold, 14 How., 446. In relation to the circumstances, under which such a suit will or will not be maintainable, see Munn vs. Worrall, 16 Barb., 221.

Where, after the recovery of judgment against her for costs, the plaintiff was found, on inquisition of lunacy, to have been insane, prior to an alleged settlement of the controversy, on which that judgment was predicated, it was set aside. Demelt vs. Leonard, 19 How., 140; 11 Abb., 252.

Where a judgment was founded upon a contract, containing an

evident mistake, it was set aside, and the defendant allowed to come in. Pettigrew vs. The Mayor of New York, 17 How., 492.

A judgment, suffered by surprise, and excusable neglect in serving an answer actually prepared, was opened in Mann vs. Provost, 3 Abb., 446. The same case is authority, that a judgment, in a proceeding for determination of claims to real estate, stands on the same footing as ordinary judgments, in this and in all other respects.

In Hayden vs. McDermott, 9 Abb., 14, relief was granted in a case of cross-judgments, by directing payment of the excess, and that both should then be satisfied.

Where judgment has been taken by default, and merits are sworn to, and an actual defence disclosed, the rule will be to open the default upon terms. Quinn vs. Case, 2 Hilt., 467; 9 Abb., 160; Commissioners of Excise vs. Hollister, 2 Hilt., 588; Clark vs. Lyon, 2 Hilt., 91. See, as to a case of technical irregularity in service, but where the proceedings of the defendant had been evasive, Southwell vs. Marryatt, 1 Abb., 218. When the defendant showed himself to be aggrieved, by having the case forced on at the circuit, an order opening the judgment upon terms, was sustained on appeal. Miller vs. Porter, 17 How., 526.

A joint-debtor, not served with process, was allowed to come in and defend the original action, the judgment standing as security, in Ford vs. Whitridge, 9 Abb., 416; Cleveland vs. Porter, 10 Abb.. 407.

When a regular judgment is set aside, it will usually be so, on condition that the costs incurred on entering it up are to be paid. See Kane vs. Demarest, 13 How., 465; Quinn vs. Case, 2 Hilt., 467; 9 Abb., 160. And also frequently, the costs of the motion. See Mann vs. Provost, 3 Abb., 446 (450); Bennett vs. Le Roy, 6 Duer, 683; 14 How., 178; 5 Abb., 55.

Conditions may also be imposed upon the defendant, in respect of the form of answer to be put in. Mann vs. Provost, supra. Or restrictions, in respect to steps taken by him in a collateral proceeding. Bennett vs. Le Roy, supra. See likewise same case, 5 Abb., 156.

Or the applicant may be required to give security, for any amount ultimately found due. Jones vs. United States Slate Company, 16 How., 129.

If there exist any doubt, as to the solvency of the applicant, the judgment actually entered, and any execution, or proceedings under that judgment, may be ordered to stand as security, although the party be admitted to defend. Blodget vs. Conklin, 9 How., 442; Clark vs. Lyon, 2 Hilt., 91; Southwell vs. Marryatt, 1 Abb., 218; Cleveland vs. Porter, 10 Abb., 407. See also stringent terms imposed in Selover vs. Forbes, 22 How., 477.

But, when the judgment has been ordered so to stand, the creditors

any

cannot take any further proceedings upon it, pending the controversy. Ford vs. Whitridge, 9 Abb., 416. And, where an amendment is allowed, the judgment cannot be directed to stand as security, for thing beyond the amount recoverable under the original complaint, on which it was founded. See Union Bank vs. Mott, 19 How., 114; 10 Abb., 376.

A judgment, ordered to stand as security, is no longer final and absolute in its nature, nor does it prevent the taking of any proceedings in the suit, not founded upon it, but independent in their effect. An order of arrest is, therefore, obtainable, whilst the action stands in this position. Union Bank vs. Mott, 16 How., 525; 8 Abb., 150; affirmed, 17 How., 353; 9 Abb., 106.

His

Terms imposed by the order, must in all cases be strictly complied with. Thus, where a plaintiff's default was opened, by giving him leave to stipulate, it was held that he was bound to give the stipula tion, even though its performance was practically impossible. proper course was to give it, and then present his matters of excuse, in answer to the motion founded on his neglect. Gale vs. Vernon, 4 Sandf., 709.

If the applicant fail to comply with the terms imposed upon him, the order will, of course, become null, and it will be important for the opposing party to see that the imposition of them is clearly expressed, and made a positive condition, on the face of the order. And, wherever the applicant's solvency is in any manner doubtful, his opponent should be prepared with affidavits to that effect, to be used on opposing the motion, so as to form ground for a demand that the judgment stand as security, or for any other similar relief that the exigencies of the case may require; the application may also be opposed generally, on proof of matter tending either to controvert, or to avoid the case made by the moving affidavits.

But, where the terms imposed have been substantially performed, and a bona fide attempt made to effect a complete compliance, the failure of which is not owing to any laches on the part of the applicant, the order will stand. The People vs. Lowber, 7 Abb., 158.

In Jewett vs. Crane, 35 Barb., 208; 13 Abb., 97, it was held that an application of this nature might be made by sureties, seeking to defend in place of their principal.

A proceeding analogous to the above, is provided for by the Revised Statutes, in the case of a limited divorce, on application of the parties, and satisfactory evidence of a reconciliation being adduced. Vide 2 R. S., 147, § 56.

A judgment may, of course, be vacated by stipulation between the attorneys, and where it is clear that an unconditional order would be