Obrázky stránek
PDF
ePub

a

[ocr errors]

scribing it), due to plaintiff, for which he bad given plaintiff the promissory notes (describing them), upon which, and for the amount of which, he confessed judgment (Kirby v. Fitzgerald, 31 N. Y. 417).

a. "For a debt justly to become due from me to plaintiff on, &c. And the following are the facts upon which such indebtedness arises : Plaintiff had been in employ of defendant several years on salary. From year to year defendant settled with plaintiff, allowing him interest on amount remaining unpaid. On 15th December, 1857, plaintiff and defendant settled, and there was then due plaintiff $4,300; for which defendant then gave his note payable, &c.; that the amount of said note, on, &c., will be $4,902, and no parments have been made thereon” (Kellogg v. Cowing, 33 N. Y. 408).

6. “ Defendants are indebted to plaintiff in the sum of $3,300, which indebtedness arose on account of goods purchased in 1853; the whole amount of the purchases was $3,500, and the amount remaining due is $3,300 ; that the goods consisted of cloths, &c, were purchased at P., where plaintiff resides (Read v. French, 28 N. Y. 285).

c. The indebtedness is twofold, first on a promissory note (describing it) "being for money loaned me by plaintiff

, to commence business as a merchant;" and second, on a promissory note (describing it)," being for money paid, by plaintiff for me, on the real estate I now own at Irving ” (Acker v. Acker, 1 Reyes, 291 ; and see Mott v. Daris, 15 How. 67; McKee v. Tyson, 10 Abb. 395). d. For «

a debt justly due plaintiff, arising out of the following facts: for money lent by plaintiff to me on 1st April, 1856, and interest thereon from 1st April, 1857" (Clements v. Gerow, 1 Keyes, 297).

e For a debt justly owing by me, and due plaintiff, arising from the following facts : for money borrowed by me of him in June, 1855, for which I gave bim my note, and one year's interest thereon " (id.)

f. For "a debt justly due from me to plaintiffs, for goods sold and delivered by them to me, at various times within the last two years, as per schedule annexed(id.) In fact, no schedule was annexed, but held that statement sufficient notwithstanding (id.)

g. The facts must be set forth in such a manner as to show a just debt, and the amount thereof, but where the creation of a just debt is averred, it is unnecessary in terms to negative that it has been paid or otherwise discharged (Lanning v. Carpenter, 20 N. Y. 447).

h. The statement need not in terms state that the sum confessed is justly due, or to become due (id.); nor expressly authorize the entry of judgment (Park v. Church, 5 How. 381).

i. The following statements were held insufficient :- The following decisions must be viewed in connection with subsequent decisions, by which they may have been overruled. The recent decisions require far less particularity in the statement than was formerly considered to be necessary.

j. Since the 10th day of December, 1845, the said A-B- (plaintiff) has lent and advanced to the said defendant the sum of two thousand one hundred and thirty dollars, to pay off and discharge the debts of said defendant, and which has been used for the purpose of paying off said debts, no part of which has since been repaid to the said A-B-; and the defendant is now justly indebted to said Å– B— in that sum (Stebbins v. J. E. Church, Rocheter, 12 How. 410).

k. “This confession is for a debt, justly due to the said plaintiff, arising upon the following facts, viz.: a promissory note, payable to the said plaintiff or bearer, for $825, dated April 16th, 1849, and payable one day from date, with use; and a promissory note, payable to the said plaintiff or bearer, for $75, dated May 16, 1849. The said sum of $1,088, being the amount of said notes, principal, and interest, up to this date, and is justly due to the said plaintiff from the said defendant” (Chappel v. Chappel, 12 N. Y. 215).

1. “For a debt justly owing, and now due to the plaintiff, upon the following facts: that we, A. 8. H. and A. H., are indebted to the said A. B. upon a

a

[ocr errors]

certain promissory note, of which the following is a copy”--then followed a copy of the note (Bonnell v. Henry, 13 How. 142; and see Park v. Church, 5 How. 381 ; Kendall v. Hodgins, 1 Bosw. 659 ; Norris v. Denton, 30 Barb. 117; Murray v. Judson, 9 N. Y. 73.)

a. Where the statement was in general terms that money " was lent and advanced, at divers times, from the 1st December, 1853, to date,"'--held not sufficient (Daris v. Morris, 21 Barb. 152; and see Moody v. Townsend, 3 Abb. 376). So where the indebtedness was stated to be " for goods sold and delivered, and upon an accounting had on the day when the confession was made ” (Boyden v. Bradstreet, 11 How. 503; and see Winnebrenner v. Edgerton, 30 Barb, 185 ; 18 Abb. 419; 17 How. 361).

6. For lumber and building materials furnished by the plaintiff to the defendant(Purdy v. Upton, 10 How. 494).

Where the statement was for “goods and groceries, and for one horse and one cow, delivered to the said George Upton (the defendant), the payment of which, to the amount of $300, is now due to said Marshall” (the plaintiff] (Marshall v. Upton, 10 How. 497).

d.“ A promissory note made by me, bearing date the 22d day of August, 1851, was given by me to said plaintiffs, on settlement of account between them and me, on the 22d day of that month ; whereon, for value received, I promised to pay to the order of said plaintiffs said sum of," &c. (Dunham v. Waterman, 17 N. Y. 9).

e. "For a debt justly and legally due to the plaintiffs, arising upon the following facts: 1. A note for $200 and interest and protest fees, dated February 28, 1855, discounted by said bank, and now owned by them " (B'k of Kinderhook v. Jennison, 15 How. 41).

f." The indebtedness arose on a judgment in the supreme court, in favor of W. B. against W. K., and assigned to plaintiff; and also on a bond, executed by W. K. to W. B, dated, &c., for the sum of $2,000, both of which securities were given for money borrowed by the defendant; and the sum confessed is justly due to the plaintiff

, without any fraud” (Beekman v. Kirk, 15 9. Amount due from defendant to plaintiff, for plaintiff's liability and guarantee, now past due, to R. S. W., as president of the M. Bank, $8,000 ; amount of one promissory note indorsed by plaintiff for defendant, due July 10, 1858, and held by C. D., $2,000 (Winnebrenner v. Edgerton, 8 Abb. 419; 17 How. 363; 30 Barb. 185).

h. Statement good in part and bad in part.-A statement may be set aside as to part, and upheld as to the residue (Boppock v. Donaldson, 12 How. 141; and see Marks V. Reynolds, 12 Abb. 403; Frost v. Koon, 30 N. Y. 428).

i. Statement may be sufficient as to judgment debtor, although insufficient as to creditors.-A statement for judgment may be sufficient as against the defendant himself, which would not be sufficient as against a creditor (Von Kellar v. Muller, 3 Abb. 375; Ely v. Cook, 2 Hilton, 406; see Purdy v. Upton, 10 How. 497 ; Viller v. Earle, 24 N. Y. 110; Neusbaoam v. Keim, 4 N. Ý. 343; Reed v. French, 28 N. Y. 285 ; Kirby v. Fitzgerald, 31 N. Y. 417).

j. Amendment of statement.-Where the statement was held insufficient, but the good faith of the indebtedness was not questioned, and no superior equities existed in favor of other creditors, an amendment was permitted, " in order to preserve the lien and priority of the judgment " (Davis v. Morris

, 21 Barb. 152; Johnson v. Fellerman, 13 How. 21 ; Hummond Bush, 8 Abb. 152; and see McKee v. Tyson, 10' Abb. 392; McDowell v. Daniels, 38 Barb. 143). The court of appeals have held that the court below has the power to amend; but, allowing or refusing the amendment is a matter of discretion, not reviewable in the court of appeals (Union B'k v. Bush, 3 Trans. App. 239'; Mitchell v. Van Buren, 27 N. Y. 300).

k. Verification of statement.-As to facts within the party's knowl

How. 228).

66

V.

no ob

edge, he must affirm them to be true (Ingram v. Robbins, 33 N. Y, 409); swearing that he “ believes the above statement of confession is true” is not sufficient (id.; Delaware v. Ensign, 21 Barb. 82). A verification in terms that “ the facts stated in the above confession are true” is sufficient (Mosher v. Heydrick, 1 Abb. N. S. 258 ; 45 Barb. 459 ; 30 How. 161). The verification may, it seems, be made before one of the plaintiff's attorneys (Post v. Coleman, 9 How. 64).

a. Signature to statement.- Where the affidavit and statement were written on the same page, and the signature of the defendant was to the affidavit only, it was held to be a substantial compliance with the requirements of the statute (Purdy v. Upton, 10 How. 494 ; Post v. Coleman, 9 i). 64; Mosher v. Heydrick, 45 Barb. 459).

6. Time of entering judgment after confession.-There is nothing in the code requiring the judgment to be entered at any particular time after the confession and statement are made. It was held jection to the judgment, that the statement was verified nearly one year before the entry of the judgment (Curtis v. Corbitt, 25 How. 66).

c. Construction of confession.-A judgment confessed to several persons, to secure an actual indebtedness, is presumed to be in favor of all parties equally (Rathbone v. Stocking, 2 Barb. 135). This presumption may be rebutted (id.)

d. How judgment may be set aside.-Judgment entered without action may be set aside for defect in the statement upon which it is entered, at the instance of a junior judgment creditor, on motion (Chappel v. Chappel, 12 N. Y. 215; Rae v. Lauser, 9 Abb. 380, note ; 18 How. 23). And this, too, although the judgment is on a bond secured by mortgage of all the real estate on which the judgment is a lien (Bonnell v. Henry, 13 How. 145).

So it may be set aside on the motion of a subsequent bona fide purchaser of real estate

, against which estate the judgment is an apparent lien (Kendall v. Hodgins, 1 Bosw. 659); or on the motion of an assignee for the benefit of creditors (Beekman v. Kirk, 15 How. 228); or it may be set aside by a decree in an action in the nature of a creditor's bill, at the suit of a subsequent judgment creditor (Dunham v. Waterman, 6 Abb. 357 ; 17 N. Y. 9); or by any party interested in impeaching it (Daly v. Matthews, 12 Abb. 403, note; see, however, Norris v Benton, 30 Barb. 117). Where a judgment is confessed directly to a third party, who takes the same in good faith and for value, it cannot be impeached for fraud existing between the other parties; but otherwise, if after the judgment is confessed, a third party takes the judgment as collateral security (Kirby v. Fitzgerald, 31 N. Y. 417).

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

f. One claiming to be a judgment creditor, on a judgment 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).

g. A judgment by confession, although voidable, cannot be impeached collaterally (Sheldon v. Stryker, 34 Barb. 116; 21 How. 329).

h. 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).

i. 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. (Amd 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 indorse 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 indorsed, shall 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 indorsed 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 installments thereafter to become due; and whenever any further installments become due, execution may, in like manner, be issued for the collection and enforcement of the same.

a. Judgment. The judgment may be entered in any county (Mosher v. Heydrick, 45 Barb. 459; 1 Abb. N. 8. 258; 30 How. 161). 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 (Blydenburgh v. Northrup, 13 How. 290 ; see 4 How. 16 ; 20 id. 267).

CHAPTER IV.

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

action.

SECTION 385. Offer of compromise.

386. Defendant may offer to liquidate damages conditionally. 387. Effect of acceptance or refusal of offer.

$385. (Am'd 1861, 1866.) 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 thereupon 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; and in case the defendant shall set up a counter-claim in his answer, to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's recovery below fifty dollars, then the plaintiff may serve upon the defendant an offer, in writing, to allow judgment to be taken against him for the amount specified, or to allow said counter-claim to the amount specified with costs. If the defendant accept the offer, and give notice thereof in writing within ten days, he may enter judgment as above, for the amount specified, if the offer entitle him to judgment, or the amount specified in said offer shall be allowed him in the trial of the action. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the defendant fail to recover a more favorable judgment, or to establish his counter-claim for a greater amount than is specified in said offer, he cannot recover costs, but must pay the plaintiff's costs from the time of the offer.

a. Tender.-It seems that the code has not repealed the provisions of the revised statutes relative to a tender after suit brought (2 R. Š. 553, $S 20, 21, 22). See note to $ 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 ; Johnson v. Columbian Ins. Co. 7 Johns. 315); and plaintiff is entitled to that amount in any event (Slack v. Brvai, 13 Wend. 390). If the amount is sufficient to carry costs, defendant must pay costs to the time of payment (Aikins v. Colton, 3 Wend. 326); if the 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 he is entitled to 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

« PředchozíPokračovat »