London & Southwestern Bank v. White

Ingraham, P. J.

(dissenting):

I dissent. The plaintiff has recovered in England two judgments against the defendant on which there was due about $29,000. The action in this State was brought on those judgments for that amount. The parties then settled the action by a stipulation, by which the plaintiff agreed to accept in full settlement of the claim the sum of $7,500, payable in installments, and as part of that settlement the defendant agreed to “execute any and all forms of transfer of the various shares now held by the plaintiff and any other documents that the plaintiff, or its attorneys may consider necessary to enable the plaintiff to realize upon the securities now in its hands held by it against the defendant.”

As I understand it, it is not claimed by the defendant that this sum of $7,500 paid the amount of the judgments which was actually due to the plaintiff at the time the settlement was made. It seems to me clear that this sum of $7,500 was to be paid in excess of the securities which the plaintiff held and to which by the settlement it became entitled, and the balance of $7,500 was to be paid in addition to what the plaintiff received from the sale of the securities.

I think, therefore, the defendant was in default and plaintiff was entitled to enter the judgment, and the judgment should not be vacated until the amount actually due the plaintiff has been paid.

Orders affirmed, with ten dollars costs and disbursements.