Smith v. Kent

Full title: WILLIAM SMITH, Appellant, v. PEGGY ANN KENT, Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 15, 1940

259 App. Div. 117 (N.Y. App. Div. 1940)

18 N.Y.S.2d 262

Opinion

March 15, 1940.

Appeal from Supreme Court of New York County, KOCH, J.

Herman Scheckner of counsel [ S. Arthur Glixon, attorney], for the appellant.

Edgar H.A. Chapman of counsel [ Reed Chapman, attorneys], for the respondent.

Present — MARTIN, P.J., TOWNLEY, DORE, COHN and CALLAHAN, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and motion denied, without prejudice to the maintenance of a plenary action to vacate judgment.

PER CURIAM.

Upon this motion to vacate a judgment, entered upon defendant's confession of judgment alleged to be void for lack of consideration and for fraud, the sharply contested issues of fact should not be resolved upon affidavits. The motion should have been denied without prejudice to a plenary action to vacate the judgment. In such action the court may afford adequate protection to the parties. (Cf. 15 R.C.L. § 106, p. 659.)

The order should be reversed, with twenty dollars costs and disbursements, and the motion denied, without prejudice to the maintenance of a plenary action.