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ment creditor (Dunham v. Waterman, 6 Abb. 357; 17 N. Y. 9). By any party interested in impeaching it (Daly v. Matthews, 12 Abb. 403 note, see how ever, Norris v. Benton, 30 Barb. 117)

a. An attaching creditor is not within the class of persons who can impeach the bona-fides of such a judgment confessed before the attachment was levied. To enable a party to question such a judgment, it must appear that he was a judgment creditor of the party confessing it, at the time of the confession (Bentley v. Goodwin, 15 Abb. 82).

b. A creditor at large has no right to move to set the judgment aside (Lowber v. Mayor of N. Y., 15 How. 123; Beekman v. Kirk, id. 231; and see Miller v. Earle, 24 N. Y. 110).

c. One claiming to be a judgment creditor on a judgmeat by confession, entered on a defective statement, cannot be heard to set aside a judgment by confession subsequently entered (Rae v. Lawser, 18 How. 23; 6 Abb. 380, n.) d. A judgment by confession although voidable cannot be impeached collaterally (Sheldon v. Stryker, 34 Barb. 116; 21 How. 329).

e. A motion by a creditor to vacate a judgment entered by confession against his debtor, on the ground that the statement is insufficient, is not a motion for irregularity within the rule requiring the notice or order to show cause to specify the irregularity complained of (Winnebrenner v. Edgerton, 8 Abb. 419; 17 How. 363; 30 Barb. 185).

f. Compelling debtor to give a new confession.-Whether the court has power in any case to compel one who has confessed judgment upon an insufficient statement to sign and verify an amended one,-Hammond v. Bush, (8 Abb. 152). [Is it not well to insert in the statement a stipulation in the nature of a covenant for further assurance, and to the effect that the debtor will on request make and execute such other document as may be necessary to give effect to the confession?]

$384. [337.] (Am'd 1849, 1851.) Judgment and execution. The statement may be filed with a county clerk, or with a clerk of the superior court of the city of New York; who shall endorse upon it, and enter in the judgment-book, a judgment of the supreme or said superior court, for the amount confessed, with five dollars costs, together with disbursements. The statement and affidavit, with the judgment endorsed, shal thenceforth become the judgment roll. Executions may be issued and enforced. thereon, in the same manner as upon judgments in other cases in such courts. When the debt for which the judgment is recovered is not all due, or is payable in installments, and the installments are not all due, the execution may issue upon such judgment for the collection of such installments as have become due, and shall be in the usual form, but shall have endorsed thereon, by the attorney or person issuing the same, a direction to the sheriff to collect the amount due on such judgment, with interest and costs, which amount shall be stated, with interest thereon, and the costs of said judgment. Notwithstanding the issue and collection of such execution, the judgment shall remain as security for the

instalments thereafter to become due; and whenever any further instalments become due, execution may, in like manner, be issued for the collection and enforcement of the

same.

a. Amending entry of judgment.-Where two written statements, duly verified, were filed by an attorney with the clerk of the county, for the pur pose of having judgments entered by confession (against the same defendant), without action; and the clerk entered in the judgment-book, judgments of the supreme court for the respective amounts confessed, with costs, but omitted to endorse the same upon the statements as directed by this section. On a subsequent day another written statement against the same defendant, by a different attorney, was filed by the same clerk, and judgment by confession thereon was perfected regularly in all respects, pursuant to the code aforesaid, the last-mentioned attorney knowing of the omissions in the two first causes. On a day subsequent to the entry of this last judgment, the attorney in the two first causes consented that the elerk re-enter the two first-named judgments by making the proper endorsements, &c., to perfect the same regularly, which was done, making them subsequent in entry and lien to the judgment first regularly entered. On a motion on behalf of the plaintiffs in the two causes first mentioned for an order requiring the clerk to endorse on the statements as of the time they were originally filed, and that the judgments be entered in the judgment-book and docketed as of the same day, the order was granted and the re-entry vacated (4 How. 16; and see Daly v. Matthews, 20 How. 267). b. Judgment, when perfected.-Until the clerk enters and records the judgment, there is no judgment, nothing of the existence of which a notice can be given, so as to affect a subsequent mortgagee or grantee. There is not only no lien, because that is in all respects the creation of the statute, but there is no judgment at all (Emott, J., Blydenburgh v. Northrup, 13 How. 290).

CHAPTER IV.

Offer of the defendant to compromise the whole or a part of

*

the action.*

SECTION 385.

Offer of compromise.

386.

387.

Defendant may offer to liquidate damages conditionally.
Effect of acceptance or refusal of offer.

§ 385. [338.] (Am'd 1851.) Offer of compromise.

The defendant may at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken against him for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer, and give notice thereof in writing, within ten days, he may file the summons, complaint, and offer, with an affidavit of notice of acceptance; and the clerk must there

**a. It seems that the code has not repealed the provisions of the revised statutes relative to a tender after suit brought (2 R. S. 553, §§ 20, 21, 22). See note to section 322.

b. Payment into court.-Where a plaintiff in bad faith, and to make costs, prevented a tender before action, for which defendant was prepared, defendant was allowed to pay money into court and have a discontinuance without costs (The People v. N. Y. Superior Court, 19 Wend. 104).

c. Payment into court is a payment pro tanto (Murray v. Bethune, 1 Wend. 191); it admits plaintiff's cause of action to the amount of the payment (Spalding v. Vandercook, 2 Wend. 431; Johnston v. Columbian Ins. Co., 7 Johns. 315); and plaintiff is entitled to that amount in any event (Slack v. Brown, 13 Wend. 390). If the amount is sufficient to carry costs, defendant must pay costs to the time of payment (Aikins v. Colton, Wend. 326); if plaintiff does not prove a cause of action for more than the sum paid in, the verdict should be for the defendant (Dakin v. Dunning, 7 Hill, 30) and is liable for costs (Logan v. Gilleck, 1 E. D. Smith, 398); even if plaintiff does not prove a cause of action for as much_as the sum paid into court, he cannot be made to refund (Read v. Mut. Safety Ins. Co. 3 Sand. 54). Where the plaintiff proves a cause of action for more than the amount paid into court, he is entitled to a verdict and judgment for the whole amount, but must credit the amount paid into court on his execution (Dakin v. Dunning, 7 Hill, 30). Money cannot be paid into court without an order (Baker v. Hunt, 1 Wend. 103).

d. Bond conditioned for payment of money by instalments is not within 2 R. S. 353, § 12, permitting defendant to discontinue on bringing the amount due into court, with costs (see The People v. N. Y. Superior Court, 19 Wend. 104). * Amended-See Appendix.

upon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs from the time of the offer.

a In what cases.-The offer may be made in any and every action (Bridenbecker v. Mason, 16 How. 203; Keese v. Wyman, 8 id. 88; Hill v. Northrup, 9 id. 525).

b. Form. It need not be signed by the defendant in person, the signature of his attorney is sufficient (Sterne v. Bentley, 1 Code R. 109; 3 How. 331). It should be so distinctly made as to leave no doubt as to its meaning or its extent (Post v. N. Y. Cent. R. R. Co. 12 How. 552). An offer served with a copy of the answer (which answer claimed a set-off in respect of two promissory notes), stating that the defendant offered to allow the plaintiff to take judgment for the amount claimed in the summons, less the amount of the two notes set up in the third and fourth defences in the answer, with costs, was held sufficient. The balance between the amount claimed and the amount of the notes was ascertainable by computation (Burnett v. Westfall, 15 How. 420). It must expressly state that judgment for the sum offered may be taken with costs, or it will be of no avail whatever (Ranney v. Russell, 3 Duer, 689). It must be unconditional and leave nothing to be ascertained or determined before the entry of the judgment (Pinkney v. Childs, 7 Bosw. 660; 15 Abb. 137, note). Thus an offer for a certain sum "without costs, this offer being subject to the covenant for a stay of proceedings entered into between the parties" was held not to be within the statute (id.; and see Hanna v. Dexter, 15 Abb. 137).

c. It may be for the full amount demanded by the complaint (Ross v. Bridge, 15 Abb. 150; 24 How. 163). It should be in behalf of all the defendants or at least in behalf of all as to whom the plaintiff is in a situation on filing the offer to perfect judgment (Griffiths v. De Forest, 16 Abb. 292; 25 How. 336; and see below, Joint debtors-Partners).

d. When it may be served.-It may be served immedately after the action is commenced and before any complaint is served (Kilts v. Seeber, 10 How. 270.) It should be served more than ten days before the trial, if served within ten days of the trial the plaintiff may proceed, and if the trial is actually had before the expiration of the ten days, in which the plaintiff may elect to accept or reject it, the defendant can have no benefit from it (Pom eroy v. Hulin, 7 How. 161; Walker v. Johnson, 8 id. 240).

e. Amendment by plaintiff.—An amendment by plaintiff of his pleadings after an offer, in nowise affects such offer (Kilts v. Seeber, 10 How. 270).

f. Joint debtors.-In an action against two to recover a joint demand, an offer by one of the defendants, the other defendant not making any defence will subject the plaintiff to costs if he proceed and fail to recover more than the amount mentioned in the offer (La Forge v. Chilson, 1 Code Rep. N. S 159).

g. Where A, B, and C were sued jointly as joint debtors, and A was the only defendant served, and he made an offer under $385, for plaintiff to take judgment for $410 and costs, the plaintiff accepted the offer, and entered judgment against "all" the defendants as joint debtors. It was held that the plaintiff was regular (Lipman v. Joelson, 1 Code Rep. N. S. 160, n.; Emery v. Emery, 9 How. 130); and that he might enforce his judgment against the joint property of all the defendants and the separate property of the defendant who made the offer (Emery v. Emery, 9 How. 130). Where two defendants were regularly served with summons, and one defendant without the authority of the other authorized an attorney to appear for both, and he appeared and served an offer which the plaintiff accepted, and took judgment,the court, on motion of the defendant who had not authorized the employ

ment of the attorney, let such defendant in to defend, the judgment standing as security (Blodgett v. Conklin, 9 How. 442).

a. Partners.-One partner has no general authority to make an offer of judg ment against the firm, in an action against the firm; and if one partner makes such an offer, and it is accepted and judgment entered, the judgment will be irregular as to all the defendants but the one making the offer (Everson v. Gehrman, 1 Abb. 167; 10 How. 301; Binney v. Le Gal, 1 Abb. 283).. But where an attorney appears for both partners, and there is no contrivance in employing him to appear, his appearance on the record may make the judgment regular (S. C. on appeal to the general term, 19 Barb. 594; Bridenbecker v. Mason, 16 How. 203). One partner of a firm in failing circumstances, for the purpose of securing a bona-fide partnership creditor, admitted service of a summons and complaint, and served an offer on which judgment was entered and execution issued against, and levy made on, the partnership property; and on motion to set aside the judgment and execution, by the other member of the firm, who was not cognizant of or consenting to the proceedings, it was held that the judgment and proceedings were regular (Olwell v. McLaughlin, 10 N. Y. Leg. Obs. 316).

b. What is a more favorable judgment-In an action to recover $274, the defendant, before answering, served an offer to allow judgment for $230 and costs. The offer was refused, and the defendant put in an answer denying the allegations of the complaint, and setting up afterwards a counter-claim for $175. On the trial, the plaintiff recovered $241 67, being less than the $230 with interest from the date of the offer to the day of trial; but as the recovery was over and above the counter-claim, and was an extinguishment of it, which an acceptance of the offer would not have been, it was held that the plaintiff was entitled to recover full costs (Ruggles v. Fogg 7 How. 324); and when a defendant, before answering, serves an offer that the plaintiffs may take judgment for a certain specified sum, with costs, which offer is not accepted, and the defendant subsequently answers, controverting the claim of the plaintiff, and setting up a counter-claim, if on the trial the plaintiff recovers the precise sum specified in the offer, and extinguishes the counter-claim, they recover a more favorable judgment than that offered (Fielding v. Mills, 2 Bosw. 489).

e. In an action to recover a money demand bearing interest, the defendant after an answer which set up a counter-claim of $30, and on the 14th of September, 1852, served an offer that the plaintiff might take judgment for $68 04. The offer was not accepted, and the plaintiff on the 9th of March, 1853, obtained a verdict for $69 40. The question arose which party was entitled to costs; and it was held that the plaintiff was liable to pay the defendant's costs from the time of the offer (Schneider v. Jacobi, 1 Duer, 694); and per Bosworth, J. "If the plaintiff had accepted the offer, he might have entered judgment on the 14th of September, 1852, for $68 04, exclusive of costs. The $68 04, with interest to March 9th, 1853, amounts to $70 32. On that day he obtained a verdict for $69 40. A judgment for that sum would be less favorable to the plaintiff by the sum of $0 92 than the one entered on the offer. He therefore failed to obtain a judgment more favorable than the one offered. The plaintiff insists that if he had accepted the offer the counter-claim would not have been extinguished,-that the verdict has extinguished the counter-claim, and therefore the judgment on the verdict will be more favorable than the judgment on the offer. He relies on Ruggles v. Fogg (7 How. 324); but in that case the offer was served before answer, and if it had been accepted would not have extinguished a claim not then interposed. This case is clearly distinguishable from that. The counter-claim had been interposed before the offer was made, and the offer must be understood to have been made with reference to the claims which each party had previously set up in the pleadings; and an acceptance of the offer would have extinguished the counterclaim." And to the like effect is Kilts v. Seeber (10 How. 270); Budd v. Jackson (26 How. 598).

d Costs. In an action on contract, at issue and on the calendar for trial, the

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