Opinion
Argued February 4, 1879
Decided February 11, 1879
M.M. Mead, for appellants.
S.C. Keeler, for respondents.
If it is assumed that the appellants make a case upon the motion papers it was entirely in the discretion of the Supreme Court at Special and General Term whether the matter involved should be disposed of on motion or by an action. ( Foote v. Lathrop, 41 N.Y., 359.) Indeed the latter is the more appropriate method ( Brinkerhoff v. Marvin, 5 Johns. Ch., 320; Miller v. Earle, 24 N.Y., 112), and therefore no appeal lies to this court. ( Foote v. Lathrop, supra, Anonymous, 59 N.Y., 315.)
But the order was properly made. The plaintiffs, Beards and others, were not entitled to judgment until the expiration of twenty days after service of the summons upon the defendant, and the latter did nothing to prevent a judgment by default at that time. The moving papers indicate no irregularity on the part of the plaintiffs in the other actions, nor do they assert, much less establish that the debts embraced in those actions were fictitious or fraudulent. The defendant availed himself of a provision of law by which he was permitted to offer judgment at any time after the commencement of the action and before verdict — he might have done so even before service of the complaint. Doubtless the effect of this offer was such that the plaintiffs in the other actions obtained earlier judgments than those of the appellants, and although they began proceedings last were able first to enforce the judgments by execution. It is therefore true, as the appellant's counsel urges, that by the act of the defendant he has enabled these plaintiffs to obtain a preference in the payment of their debts, but this is not unlawful. The debtor might have reached the same end by payment, by turning out property, by chattel mortgage, by confession of judgment, or by an assignment. It is, however, unnecessary to consider this question, as for the reason first above stated the appeal should be dismissed with costs.
All concur.
Appeal dismissed.