Opinion
March 24, 1952.
On October 11, 1951, two judgments by confession were entered in favor of respondent, one against appellant Quigan and the other against both appellants. Thereafter, appellants joined in making a motion to vacate the judgments on the ground that they had been entered fraudulently, in that appellants had not in fact been indebted to respondent, that the confessions had been executed and delivered merely for the purpose of accommodation to respondent, that the confessions and certain other documents which purport to evidence the alleged indebtedness were delivered in escrow and that the condition pursuant to which they were to be released from escrow never occurred, and that in no event were the confessions to be enforced. Upon the return of the motion, the court, being of opinion that the papers submitted by both sides presented disputed questions of fact which could not be determined on such papers, conducted a hearing. However, at the conclusion of the presentation of the movants' proofs, and in obviation of respondent's proofs, the court dismissed the motion on the ground that he was without jurisdiction, and that the correct remedy was by way of plenary action. The appeal is from the order made thus dismissing the motion. Order affirmed, with $10 costs and disbursements. Although we are of opinion that the court was not without power to determine the motion on the merits, we are of the further opinion that the relief sought may be refused, when sought by way of summary motion, in the exercise of discretion. After the rendition of the decision by the Special Term, and before the making of the order under review, appellants commenced respective plenary actions against respondent to vacate the judgments and various other documents, including the evidence of the alleged debts, upon the same grounds as had been advanced on the motion. The relief which could be given on the motion, assuming that on the merits appellants could establish they were entitled to any, would not reach so far as to cancel the documents other than the judgments, whereas the alleged invalidity of all the documents could be tried out in the action. Thus, full and complete determination can only be had through the actions, and therefore appellants should be relegated thereto. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur. [See post, p. 1012.]