The judgment entered herein was pursuant to a stipulation entered during trial in open court. The action charged the individual defendant with fraud. The stipulation provides that in the event of default in making the stipulated payments, judgment in fraud would be entered. Such a judgment has been entered.
The plaintiff now applies for the issuance of a body execution, the defendant having failed to make payments in satisfaction of the judgment. The opposition to the motion is to the effect that the stipulation constitutes a new contractual obligation, superseding and displacing the tort cause of action sounding in fraud and, therefore, that it is a waiver of plaintiff’s right to a body execution. This contention is without merit, as the judgment was éntered pursuant to the stipulation. The case of Yonkers Fur Dressing Co. v. Royal Ins. Co. (247 N. Y. 435) is inapplicable. The issuance of an execution against the person under section 764 of the Civil Practice Act rests in the discretion of the court.
The motion papers indicate that the defendant took unconscionable and fraudulent advantage of an elderly woman and should be required to live up to his agreement to repay the money he wrongfully took from her. The court believes that his conduct is evasive and purposely obstructive to the discharge of this obligation. The offer to submit to an examination in supplementary proceedings in view of his prior conduct is not worthy of consideration, as it would be futile, vexatious, unproductive and merely add to plaintiffs’ already burdensome task in seeking a recovery of her now much-needed money. His offer to make a down payment of $200 and $50 per month thereafter is also unacceptable, under the facts and circumstances here presented.
The motion is granted, unless within 10 days after service of a copy of the order to be entered hereon the said defendant *6pays to the plaintiff the sum of $400 and the sum of $100 monthly until the unpaid balance of the judgment is wholly paid and discharged, and that an order for the issuance of an execution against his person may be granted in the event of default in any payment herein directed.
Settle order.