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several persons jointly indebted upon a contract, by proceeding as provided in section 136, those who were not originally summoned to answer the complaint may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.
Q. Where the plaintiff recovers judgment on contract against three out of four joint debtors, the action being against all four, but the summons having been served only on the three against whom the recovery was had, he may proceed, under this section, against the defendant not served (Harper v. Bangs, 18 How. 457); or where judgment has been obtained against two defendants on a joint contract, the process being served on one of the defendants only, and the judgment to be collected of the joint property of both, or of the separate property of the defendant served, a second action may be brought against both defendants, alleging the former recovery, the joint obligation, the proofs being served on the defendant not previously served, and a like judgment taken as in the first action (Dean v. Eldridge, 29 How. 218); such a course seems unnecessary and improper (Lane v. Salter, 4 Rob. 239).
b. This section does not apply to a judgment in a justice's court of which a transcript has been filed with the county clerk (Ticknor v. Kennedy, 4 Abb. N. S. 417; Prince v. Cujas, 7 Rob. 76 ; Johnson v. Smith, 14 Abb. 423).
C. A proceeding under this section is not a new action, and the party served cannot have the action removed into a federal court (Fairchild v. Durand, 8 Abb. 305).
$ 376. (Amd 1849.) If judgment debtor die, his representatives may be summoned.
In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may, after the expiration of three years from the time of granting letters testamentary, or of administration upon the estate of the testator or intestate, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively; and the personal representatives of a deceased judgment debtor may be so summoned, at any time within one year after their appointment.
d. Where a joint debtor has not been served with process, but judgment in form is entered against him pursuant to section 136 of the code, he is not to be considered a judgment debtor” within the meaning of section 376 (Foster v. Wood, 1 Abb. N. S. 150; 30 How. 284).
e. The provisions of this, and the following sections to section 381 inclusive, do not authorize proceedings against executors personally (Mills v. Thursby, 11 How. 131; 12 id. 385; 2 Abb. 432).
f. The heirs, &c., must be proceeded against jointly, and not separately, but that does not make them jointly liable as joint debtors (Kellogg v. Olmsted, 6 How. 487).
g. No suit can be brought against heirs to charge them with the debt of
their ancestors, within three years from the granting letters testamentary or of administration upon the estate of ancestor (Roe v. Suezey, 10 Barb. 247).
a. In proceedings by scire facias to revive a judgment, remainder men must be parties or they are not bound (Campbell v. Rurodon, 18 N. Y. 412).
As to suits against heirs, see Laws 1859, ch. 110.
$ 377. Forms of summons.
The summons provided in the last two sections shall be subscribed by the judgment creditor, his representatives or attorney; shall describe the judgment, and require the person summoned to show cause within twenty days after the service of the summons; and shall be served in like manner as the original summons.
6. The defendant, against whom judgment has already been obtained, need not be named as a defendant in the summons issued pursuant to this section (Johnson v. Smith, 14 Abb. 421).
c. The summons need not specify any time or place to show cause, but specifying a time and place would not vitiate the summons (Tounsend v. Newell, 17 Abb. 340).
$ 378. Affidavit of amount due.
The summons shall be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied, to his knowledge, or information and belief, and shall specify the amount due thereon.
$ 379. (Am'd 1849, 1866.) Party summoned may answer.
Upon such summons any party summoned may answer, within the time specified therein, denying the judgment, or setting up any defense thereto which may have arisen subsequently to such judgment; and in addition thereto, if the party be proceeded against according to section three hundred and seventy-five, he may make any defense which he might have made to the action if the summons had been served on him at the time when the same was originally commenced and such defense had been then interposed to such action.
$ 380. (Am'd 1849.) Subsequent proceedings.
The party issuing the summors may demur or reply to the answer, and the party summoned may demur to the reply; and the issues may be tried, and judgment may be given in the same manner as in an action, and enforced by esecution, or the appli
cation of the property, charged to the payment of the judgment, may be compelled by attachment, if necessary.
As to costs, see § 307, subd. 7, ante.
$ 381. (Amd 1849.)
Answer and reply to be verified. The answer and reply shall be verified in the like cases and manner, and be subject to the same rules, as the answer and reply in an action.
Confession of judgment without action.
SECTION 332. Judgment may be confessed for debt due, or for contin
$382. Judgment may be confessed for debt due, or for contingent liability.
A judgment by confession may be entered, without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter.
a. Confession out of court.-A confession of judgment in an action of tort is not within this section (Boutette v. Owen, 2 Sand. 625). A confession of judgment by a defendant in custody, at the suit of the person in whose favor the judgment is confessed, made without the presence of counsel or the advice of some attorney named by the defendant, and attending at his request, will be set aside on motion (ib. ; see Merrill v. Baker, 11 How. 456). There is nothing in this chapter limiting it to cases of disputed or unsettled demand, or indicating an intention that it should be thus restricted in its operation. It applies to all cases to which its language is applicable, and this mode of obtaining judgment may be pursued in all cases where the parties choose to resort to it (Hill v. Northrup, 9 How. 526).
b. Future advances.—A judgment may be confessed as security for future advances (Truscott v. King, 6 N. Y. 147; Marks v. Reynolds, 12 Abb. 403; Averill v Loucks, 6 Barb. 19).
c. Joint debtors.-A judgment by confession, without action, can only be entered against the person who signs the confession. One of two persons or joint debtors cannot confess judgment for both (Stoughtenburg v. Vandenburg, 7 How. 229). Where the confession was to bind the defendant " of the firm,”—held that it not only meant to hind the defendant individually, but the partnership property, and that on such a confession judgment was properly entered against both partners (Von Keller v. Muller, 3 Abb. 375, note ; see Graser y. Stellwagen, 25 N. Y. 315).
a. Public officer.-A public officer, who is liable to be sued for services rendered for the public at his request, may confess a judgment in bis individual capacity for the amount (Gere v. Supervisors of Cayuga, 7 How. 255).
6. Married Women.-Prior to the law of 1860, a confession of judgment by husband and wife, for the debt of the husband, and the judgment entered thereon in personam, was void as to the wife (Watkyns v. Abrahams, 24 N. Y. 72); but the court was not bound to set aside such a judgment (see Knickerbacker v. Smith, 16 Abb. 241; Roraback v. Stebbins, 33 How. 278; 3 Keyes, 62; Palmer v. Davis, 28 N. Y. 242). A married woman may confess a judgment for a debt in her separate business (First Nat. B'k of Canandaigua v. Garlinghouse, 53 Barb. 615; 36 How. 369).
c. Trustee.-A trustee cannot confess a judgment without action so as to bind the trust estate (Mallory v. Clark, 20 How. 418; 9 Abb. 358; and see Marks v. Reynolds, 12 Abb. 403).
d. Partners.--Confession by partners (Averill v. Loucks, 6 Barb. 19; Leahey v. Kingon, 22 How. 209; 13 Abb. 192; Lambert v. Converse, 22 How. 265). See Joint debtors, supra.
e. Confession of persons of unsound mind.-A confession by a person of unsound mind may be set aside, on terms in the discretion of the court (Person v. Warren, 14 Barb. 488).
f. Not a disposing of property.-A mere confession of judgment is not a violation of an injunction restraining the defendant from disposing of, or in any manner interfering with, his property, unless accompanied by acts of the defendant showing an intent to dispose of his property (Ross v. Clussman, 1 Code Rep. N. S. 91 ; see Ireland v. Smith, 1 Barb. 419).
g. Irregularity.—The provision of the revised statutes, forbidding the setting aside a judgment for irregularity after one year (2 R. S. 282, & 2), does not prevent the setting aside a judgment by confession after that period, for the want of a sufficient statement (Manufac. B’k v. St. Johns, 5 Hill, 497; Manufac. B'k v. Boyd, 3 Denio, 257; Bonnell v. Henry, 13 How. 142; but see Park v. Church, 1 Code Rep. N. 8. 47).
See sec. 53, sub. 8.
$ 383. Statement in writing, and form thereof.
A statement in writing must be made, signed by the defendant and verified by his oath, to the following effect : 1. It must state the amount for which judgment may
be entered, and authorize the entry of judgment therefor.
2. If it be for money due or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due.
3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same.
h. The following statements have been held sufficient:“ The above indebtedness has arisen for goods, wares, and merchandise sold and delivered to me by the said plaintiffs, in the month of May, 1853" (Delaware v. Ensign, 21 Barb. 85).
i. “ One promissory note given by me to said L., on the 8th of Dec. 1854, for $100 borrowed money, on which is endorsed $11, said note due when
given; also, one promissory note of $340, made by me, and dated Oct 17, 1853, due when given, and now owned by said L., the same being given for borrowed money; also, for said L. assuming the payment of the sum of $1,000 at the Bank of Havana, on 14th July, 1855, by which a note of $1,000 made by me, payable to the order of S. C. at said bank, dated 31st May, 1855, and indorsed by said 8. C., was paid and taken up” (Lanning v. Carpenter, 20 N. Y. 448).
a. "The above indebtedness arose on a promissory note, made by the defendant to the plaintiff
, dated June 21st, 1854, in the sum of $700, with interest, that amount of money being had by the defendants of the plaintiff, and upon which there is this day due the sum of $782, with $90 now due from defendants to plaintiff, as costs in an action on said note” (Freligh v. Brink, 22 N. Y. 418).
6. “The plaintiff has this day indorsed my notes, payable at bank, for $6,000 in all, for my accommodation, and to enable me to negotiate said notes ;" without any further description of the notes (Hopkins v. Nelson, 24 N. Y. 518).
c. "On or about the 18th of December, 1858, the plaintiff lent or advanced to the defendant, in cash, the sum of $2,000, which said sum, with interest thereon from the said 18th day of December, 1858, amounting to $80.24, is now justly due by the defendant to the plaintiff” (Johnston v. McAusland, 9 Abb. 214).
d. For money advanced by plaintiff for defendant, at a time mentioned, including interest thereon to date (Lyon v. Sherman, 14 Abb. 393).
e. Plaintiff sold the defendant a quantity of meat in the years 1854 and 1855, and that there was justly due to the plaintiff, upon such sale, a certain specified balance, is sufficient (Neusbaum v. Keim, 24 N. Y. 325; and see Curtis v. Corbitt, 25 How. 58.)
f. The statement is sufficient if it sets forth that the judgment is confessed to secure the plaintiff for a debt justly to become due upon his indorsement as the surety of the defendant, and for his benefit, of bills and notes which are fully described, as to names, dates, amounts, and times of payment (Dovo v. Platner, 16 N. Y. 563; see Mark: v. Reynolds, 12 Abb. 403 ; Winnebrenner v. Edgerton, 8 Abb. 419; 17 How. 363; 30 Barb. 185; Manchester v. Preston, 14 How. 21).
g." The above indebtedness arose on account for goods sold and delivered to me by the plaintiffs, for which I have not paid, and the sum above confessed is justly due to the plaintiffs, without any fraud whatever,"—
-was held sufficient. Also, a statement as follows: "The above indebtedness arose on account of goods sold and delivered by said plaintiff to me since the first day of January, 1855, and the sum above confessed is justly due to the said plaintiff, without any fraud whatever” (Gandoll v. Finn, i Keyes, 217; 33 How. 444). This is the opinion of the court as published; but the report concludes: “judgment affirmed,” and below these statements were held insufficient (23 Barb. 652).
h. That “the indebtedness arose on the sale and conveyance, by plaintiff to defendant, of his interest” in certain partnership property, but not showing how the plaintiff was connected with the firm, nor bis interest (Thompson v. Van Vechten, 27 N. Y. 568).
i. The sum of $1,500, for cash borrowed of plaintiff from time to time, for which he held the note of the defendant, dated, &c. That plaintiff had assumed for defendant payment of $2,000, for which the latter had given the former his two notes for $1,000 each, payable, &c. (Ely v. Cook, 28 N. Y. 365).
j. “ 1852, December 1. Money lent by plaintiff to defendant to aid in purchasing a lot, at, &c., to the amount of $200. 1853, August 1. A balance was due plaintiff by defendants on purchase of lot, at, &c., $800. 1854, May 1. Money was lent by plaintiff to defendant to aid in purchase of lot, at, &c., $300;
and cash was lent by plaintiff to defendant at different times since the above, to $175.” The last item was not sufficient (Frost v. Koon, 30 N. Y.428).
k. That plaintiff had purchased of defendant a certain indebtedness (de