I concur in that part of the prevailing opinion which reverses the judgment as to S. Mack Smith, but dissent from the residue thereof.
The plaintiff in the present action, upon ascertaining the amount of the claim, with costs, sent a check for the same to the plaintiffs in the action against him. He accompanied it with his own letter explaining for what purpose the check was sent, and also inclosed a •letter from the plaintiff’s attorney in the action stating the amount of costs, and also one of Mr. Parsons, the agent of the collecting Agency, pertaining to the claim. While technically Mr. Clark should have sent the check to the attorney in the action, there is no indication that he was acting maliciously. The fact that he sent the correspondence and the full amount of the claim and costs shows that he was simply seeking to pay the obligation against him.
The bookkeeper of the plaintiffs in that action received the check, . but did not advise the attorney thereof, although he resided in the same city as the plaintiff. Later one- of the members of the firm," who was absent at the time, received the check, ratifying the trans.action. In.the meantime judgment was entered by the attorney, as we must assume, in good faith, and an execution issued against Mr. Clark. This judgment was, of course, a lien upon his land. He ■conceived that his credit had been impaired and that he had sustained other damages by the entry of this judgment and the issu*482anee-of the execution. He was a grocer, buying goods, with outstanding obligations against him, and..very naturally might, have suffered damage as he claims. ¡
I think two remedies were open to Mm : In the first place, he could make a znotion in that action to open the judgment which had been entered against him by default. That Would not have enabled hizn td recover the damages which he contended lie had sustained. The action against him was one at law and the daimages which he claims to have sustained arose subsequent to the cqmmenceznént of the action. He also had another remedy —- that was an equity action to set aside the judgment as a cloud or lien upoii liis real estate. (Barker v. Laney, 7 App. Div. 352; Van Etten v. Hasbrouck, 4 N. Y. St. Repr. 803; Buffum v. Forster, 77 Hun, 27; Clapp v. McCabe, 155 N. Y. 525, 533; Shaw v. Dwight, 16 Barb. 536; Pom. Eq. Juris. § 1362 et seq.)
This- remedy was especially available to him as he sought to recover damages by reason of the iznproper entz-y of this judgment and also., to'restrain .its enforcement. He might, therefore, in the one action obtain the setting aside of the judgment and incidentally thereto recover the daznages to which he was entitled.
The referee in his repoz-t designates the daznages which he awards to the plaintiff as a nominal sum.” It- is uniziiportant how he characterizes the amount, for he states the sum tjo be twenty-one dollars.
After the commencement of the action the judgment was satisfied Vohmtarily at the instance of the judgznent creditors. There was iio offer or suggestion upon their part that they’ were willing to pay any damages or to have the action diseonfcizzued, or' that the satisfaction should in any. way affect the pending action. There' was ho other course, therefore, open to the present plaintiff except to prosecute the action. This was the situation when it was presented to the refez’ee, and it being an equity actibn, although the damages awaz’ded were small, he allowed costs to the plaintiff, which he was. justified in doing. At the tizne of the cbznznencement of the action the judgznent was a lien, so that the action Was pznperly commenced',, and it was necessary for the present defendants to take, the initiative if they desired to be reliéved in any way by the satisfaction of the judgment.
*483The attorney for the judgment creditors was insisting upon the payment of a further sum before satisfying the judgment. It was, consequently, unnecessary to demand the satisfaction and the payment of the damages before commencing the action. In any event the only bearing of a demand was upon the question of costs, and that subject was within the discretion of the referee.
The judgment should be affirmed, with costs as to all the defendants except S. Mack Smith.
Hiscock, J., concurred.
Judgment reversed and new trial ordered, with costs to the appellants to abide event, upon questions of law only, the facts having been examined and no error found therein.
*484DETERMINED IN THE THIRD DEPARTMENT IN THE APPELLATE DIVISION, %umxm:Klf 1904.