Obrázky stránek

was keeping." Held, that this was a sufficient statement of the facts out of which the indebtedness arose, to satisfy the requirements of the statute. Post v. Coleman, 9

Pr. R.,


a. Where the confession declared the debt to be justly due to the plaintiff, and although by the terms of the note it was not then legally due, yet the defendant made it so by the express terms of the confession of the judgment, the debt became merged in the judgment. Ib.

b. It is no valid objection to the regularity of a judgment, that the statement was verified before one of the plaintiff's attorneys. Ib.

c. A bond and warrant of attorney (confession of judgment] executed by a person who is subsequently found by inquisition to have been at the time of unsound mind, so that he was incapable of governing himself or managing his affairs, &c, and a judgment entered thereon by confession, are not absolutely void, and will not be set aside unconditionally where it appears from the evidence that the alleged lunatic was, for several years prior to the execution of the bond and warrant, permitted by his friends to exchange lands, to buy and sell real and personal property, and to give notes, bonds, and mortgages, and there is no notice, fraud, or want of good faith alleged in the pleadings. But such judgment, and all subsequent proceedings, may be set aside on terms in the discretion of the court. Person v. Warren, 14 Barb., 488.

d. There is nothing in section 385 limiting it to cases of disputed or unsettled demands, 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. Northrop, 9 Pr. R., 526.

384. [337.] (Amended 1849–1851.) Judgment and execution.

The statement may be filed with a county clerk, or with the clerk of the superior court of the city of New York; who shall endorse upon it, and enter in the judgment-book, a judg. ment 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, 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 in

. stallments 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 execntion, the judgment shall remain as security for the installments thereafter to become due; and whenever any further

[ocr errors][merged small]

installments become due, execution may, in like manner, be issued for the collection and enforcement of the same.

Before the amendment for 1851 the section stopped where the asterisk is placed.

a. The court will not allow a party to suffer by the omissions or mistake of a clerk, attorney, or officer of the court, where a substantial right is involved. Neele v. Berryhill

. Clark v. Berryhill. Gibbs v. Berryhill, 4 Pr. R., 16. An exception to this rule seems to be Manning v. Guyon, 1 Code Rep., 43; Wright v. Alden, 3 Pr. R., 213; Allen v. Smilie, 1 Abbott, 358.

b. Where two written statements, duly verified, were filed by an attorney with the clerk of the county, for the purpose 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 (section 337 in code of 1848). 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 clerk 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 Pr. R., 16.


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

the action.*

Section 385. Defendant may serve offer to compromise, and the proceedings

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

$ 385. [338.] (Amended 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

c. 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, ss. 20, 21, 22.) See note to section 322.

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.

[ocr errors]

a. This section was substituted for s. 338 of the code of 1848, with which prior to its amendment it was identical. The material amendment to this section is the striking out at the commencemeut the words “ In an action arising on contract."

b. It is presumed that an offer may now be made in every action. An offer in writing to allow judgment to be taken against the defendant, signed by his attorney, . is equivalent to an offer sigued by the defendant. Sterre v. Bentley, 1 Code Rep., 109; 3 Pr. R., 331.

c. The section before amendment was that the defendant might serves an offer in writing;" the amended section omits the words “in writing,and only uses ibe word "offer." As, however, the offer is to be served, we presume it must still be in writing.

d. The term costs in this section, it is said, embraces merely the ordinary costs in the suit, and not the extra allowance spoken of in sections 308 and 309, so that although a defendant against whom a judgment is obtained for a less amount than be offered in writing to allow judgment to be taken against him, is entitled to costs from the time of the offer, yet he is not entitled to an extra allowance under sections 308 and 309. McLees v. Avery, 3 Code Rep., 104; 4 Pr. R., 441.

e. Where, in an action to recover land, the defendant served with his answer, which was a general denial, an offer under section 385 allowing the plaintiff to take judgment for a part of the premises claimed. The offer was not accepted. The plaintiff did not obtain a more favorable judgment than that offered, and the question arose as to the amount of costs to each party. Hand, J. allowed the plaintiff 812 and disbursements for his costs up to the time of the offer, but disallowed all subsequent costs and disbursements, including the disbursements on entering judgment. He also allowed the defendant full costs, excepting $5 costs before potice of trial, but do costs of entering up a separate judgment for his costs. He allowed extra costs to the defendant Keese v. Wyman, 8 Pr. R., 88.

f.“ The offer under the code is analogous to the cognovit under the former practice, Johnson v. Sagar, 10 Pr. R., 453 ; Lippman v. Joelson, 1 Code Rep. N. S., 161 n.; Emery v. Emery, 9 Pr. R., 130, and, when accepted, stands in ihe place of the verdict of the jury, or the decision of the court on the trial of the issue."Johnson, J. Johnson v. Sagar, 10 Pr. R., 453.

g. An offer in writing under this section amounts to a written stipulation on the part of the defendant waiving all right to proceed in the action for the term of leo days, or until the plaintiff makes his election in writing to reject the offer. This election cannot be made by parol so as to be binding on the plaintiffand deprive him of his right to accept the offer, and give notice thereof in writing within ten days, and proceed according to the code to take judgment according to the offer, And where the offer was not served until four days before the circuit, and on the day of the service one of the plaintiff's attorneys declared orally that he should not then accept it, and on the next day again orally declared that he should not accept the offor, and proposed to make some arrangement with the defendant for having the cau se tried on the first day of the circuit,—the cause was regularly called ou the cal en dar within ten days after service of the offer, and the plaintiff not answeriog, the defendant obtained an order dismissing the complaint. The court, ou motion, held the defendant's course irregular, aud as inconsistent with the right of the plaiotiff to have teu days within which to accept or reject the offer. Walker v. Johnson, 8 Pr. R., 240.

563 a. The plaintiff in all cases of an offer under this section, has ten days to elect whether he will accept it or proceed to trial. Pomeroy v. Hulin, 7 Pr. R., 161.

b. If a defendant desire to avail himself of this section, he must make his offer at such time that the plaintiff may also have the full benefit of the section; and if the offer is served so late that the cause is reached and tried before the expiration of the ten days, the rights of the parties are in all respects as if no offer had been made. Ib.

c. lo 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 à 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, und 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 Pr. R. 324.

d. In an action to recover a money demand bearlog 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 order. 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-clain would not have been extinguished,—that the verdict has extinguished the counterclaim, and therefore the judgment on the verdict will be more favorable than the judgment on the offer. He relieson Ruggles v. Fogg, 7 Pr. R., 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 counter-claim." Aud to the like effect is Kilts v. Seeber, 10 Pr. R., 270.

e. In an action on contract at issue and on the calendar for trial, the defendants made an offer of judgment for 49 50, which the plaintiff accepted; held the defendant was entitled to recover his costs of the defence. Johnson v. Sagar, 10 Pr. R., 452.

f. An offer under section 385 may be given by one of several defendants who have been served, so as to admit of a judgment against the individual property of the one making the offer and the joint property of all the defendants. In such case the offer is a substitute for the cognovit under the former practice. One partner of a firm in failing circumstances, for the purpose of securing a bona fide partnership ereditor, admitted service of a summons and complaint, and served an offer to com. promise under section 385, 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 Leg. Obs., 316, in New York Common Pleas.

g. An admission that the principal of a debt had been tendered before suit brought is not sufficient to prevent recovery. The tender should also be of the interest up to the day of tender. A tender does not debar the plaintiff from recovering, unless the amount is paid into court. Livingston v. Harrison, New York Common Pleas General Term, Nov., 1853.

a. Semble, the offer may be made before service of the complaint. Kilts v. Seeber, 10 Pr. R., 270.

6. Where a defendant has made an offer under this section, his rights thereupon, cannot be affected by any subsequent amendment by the plaintiff of his pleadings Ib.

c. Where a defendant is regularly brought into court by process, and an attorney of the court appears for him, the attorney's acts are valid and binding on the party for whom he appears until he is superseded, unless collusion be shown ; and if the attor. ney has appeared without authority, the remedy of the party is against the attorney; except that where the attorney is irresponsible, and the defendant swears to merits, the couri will let him in to defend, the judgment in the mean while to stand as security, Thus, where two defendants were regularly served with summons, and one defendant without the authority of the other authorizes 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 employment of the attorney, let such defendant in to defend, the judgment standing as security. Blodgett v. Conklin, 9 Pr, R., 442.

d. When A. B. & C. were sued jointly as joint debtors, and A. was the only defendant served, and he made an offer under section 385, for plaintiff to take judg. ment 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 in his proceedings, and the code has not in that respect superseded the revised statutes. Lippman v. Joelson, 1 Code Rep. N. S., 161, » ; Emery v. Emery, 9 Pr. R. 130.

e. One partner has no general authority to make an offer of judgment 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 Abbott, 167; 10 Pr., 301.

f. A judgment entered up against two persons, partners in business, upon an offer in writing made by one, will be set aside as irregular as against other, unletss there is evidence from which it may be in ferred that the other authorized or ratified the offer. Binneyv. LeGal, 1 Abbott, 283.

g. 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.

h. Where a defendant makes an offer under this section, which the plaintiff rejects, and the answer of the defendant admits that there is due to the plaintiff the amount so offered, the court will not order the defendant to satisfy such amount an. der section 244. Smith v. Olssen, 4 Sand. 711.

$ 386. [339.] Defendant may offer to liquidate damages conditionally.

In an action arising on contract, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that if he fail in his defence, the damages be assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, with or before the notice of trial, and on the trial bave a verdict, the damages shall be assessed accordingly.

$ 387. [340.] Effect of acceptance or refusal of offer.

If the plaintiff do not accept the offer, he shall prove his damages, as if it had not been made, and shall not be permitted

« PředchozíPokračovat »