FRIEDMAN v. JANCESKI (1998)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about October 7, 1997, which, insofar as appealed from as limited by appellants' brief, granted plaintiffs judgment creditors' motion to vacate the satisfaction of judgment unless defendants judgment debtors paid the Sheriff's poundage fee within 30 days, unanimously affirmed, with costs.

The satisfaction of judgment, which was prepared by defendants, plainly states that defendants had “assumed the obligation to pay the Sheriff's fees”.   It also appears that at the closing at which defendants paid the principal and interest on the judgment, their attorney drew a check to the Sheriff in the amount of the poundage and gave a copy thereof to plaintiffs.   That check was, however, returned by defendants' attorney and never delivered to the Sheriff.

Clearly, the satisfaction was conditioned upon defendants' payment of poundage.   Defendants' argument that their obligation to pay poundage should be reduced by the amount of interest they paid on the judgment that plaintiffs had previously waived, but, shortly before the closing, insisted be paid, is without merit, absent anything in the record indicating that defendants attempted to enforce the waiver at the closing or otherwise disputed their obligation to pay interest.   Defendants' payment of interest at the closing, and their promise to pay the poundage in a document they themselves drafted, refutes their claim that the waiver continued to be effective.

MEMORANDUM DECISION.