For the petitioner, Maurice S. Fayman.
For the defendant, David Novack.
Before Justice Perskie, at chambers, pursuant to statute.
PERSKIE, J. This cause is before me on the return of a rule to show cause why a judgment entered upon a bond and warrant should not be opened and defendant be permitted to enter his appearance and defend the action. I am asked to declare that the judgment entered, execution issued and levy made to enforce payment thereof are null and void.
The facts are stipulated. On January 27th, 1938, petitioner, Stanley Ryba, purchased a Packard sedan from William
Riker, Jr., for $816.20. He made a down payment of $200 and agreed to pay the balance of $616.20 in seventy-eight weekly installments of $7.90 each. Ryba executed a conditional sale contract which was assigned by the seller to the Atlas Automobile Finance Corporation, hereinafter referred to as Atlas. He also executed a bond and warrant to Atlas as obligee, in the following form:
"Know all men by these presents, that Stanley Ryba is held and firmly bound unto Atlas Automobile Finance Corporation, a corporation of the State of Pennsylvania, in the sum of Twelve Hundred Thirty-Two and 40/100 lawful money of the United States of America to be paid to the said Atlas Automobile Finance Corporation, its certain Attorney, Executors, Administrators, or Assigns, to which payment well and truly to be made I do hereby bind myself and my Heirs, Executors, and Administrators firmly, by these presents.
"Sealed with my seal, dated the 27th day of January, in the year of our Lord one thousand nine hundred and thirty-eight.
"The condition of this obligation is such, that if the above bounden Stanley Ryba, his Heirs, Executors, Administrators, or any of them, shall and do well and truly pay, or cause to be paid unto the above named Atlas Automobile Finance Corporation, its certain Attorneys, Executors, Administrators, or Assigns the just sum of $616.20 in 78 equal weekly installments of $7.90 each, the first installment to become due within one week after date, and balance of installments to be paid each and every week in succession for 78 weeks thereafter, until total balance is paid, together with fifteen percent added for collection fees in the event that it becomes necessary to enter proceedings hereon, without any fraud or further delay, then the above obligation to be void, or else to be and remain in full force and virtue.
(Signed) STANLEY RYBA (L.S.)."
The purchaser made several payments ($79) on account of the purchase ...