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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 his individual capacity for the amount (Gere v. Supervisors of Cayuga, 7 How. 255).
b. 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. S. 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).
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 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).
b. "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 (Dow v. Platner, 16 Ń. Y. 563; see Marks 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" (Gandall v. Finn, 1 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 his 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
sc ribing it), due to plaintiff, for which he had 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 payments have been made thereon " (Kellogg v. Cowing, 33 N. Y. 408).
b. "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 Keyes, 291; and see Mott v. Davis, 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 him 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 A- B-in that sum (Stebbins v. M. E. Church, Rochester, 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),
7. "For a debt justly owing, and now due to the plaintiff, upon the following facts that we, A. H. H. and A. H., are indebted to the said A. B. upon a
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 (Davis 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).
b. "For lumber and building materials furnished by the plaintiff to the defendant" (Purdy v. Upton, 10 How. 494).
c. 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 $400 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 How. 228).
g. 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 (Hoppock v. Donaldson, 12 How. 141; and see Marks v. Reynolds, 12 Abb. 403; Frost v. Koon, 30 N. Y. 428).
¿. 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; Miller v. Earle, 24 N. Y. 110; Neusbaum v. Keim, 24 N. Ý. 325; 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; Hammond v. 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
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 ib. 64; Mosher v. Heydrick, 45 Barb. 459).
b. 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 to be no objection 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. Lawser, 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).
e. A creditor at large has no right to move to set the judgment aside (Louber 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).
9. 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?]