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Of the Miscellaneous Proceedings in Civil Actions, and General
CHAPTER I. SUBMITTING A CONTROVERSY WITHOUT ACTION.
II. PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, LEGATEES,
III. CONFESSION OF JUDGMENT WITHOUT ACTION.
IV. OFFERS OF THE DEFENDANT TO COMPROMISE THE WHOLE
OR A PART OF THE ACTION.
V. ADMISSION OR INSPECTION OF WRITINGS.
VI. EXAMINATION OF PARTIES.
VII. EXAMINATION OF WITNESSES.
X. COMPUTATION OF TIME.
XI. NOTICES, AND FILING AND SERVICE OF PAPERS.
XIII. ACCOUNTABILITY OF GUARDIANS.
XV. MISCELLANEOUS PROVISIONS.
Submitting a controversy without action. "
SECTION 372. Controversy, how submitted without action.
374. Judgment, how enforced or appealed from.
$372. Controversy, how submitted without action.
Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear, by affidavit, that the controversy is real, and the proceeding in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, at a general term, and render judgment thereon, as if an action were depending.
a. A proceeding under this section is not an action (Lang v. Ropke, 1 Duer, No authority is contained in this section for the submission of actions;
it relates solely to the submission of questions of difference without action; and where an action was commenced, and a case, containing the facts upon which the controversy depended, was agreed upon and submitted, it was held that if the action was not thereby discontinued, it must be when a submission is followed by a judgment (Van Sickle v. Van Sickle, 8 How. 265).
a. There is no authority for the appointment of a guardian for an infant, for the purpose of submitting a controversy without action; and an infant cannot consent to such submission (Fisher v. Stilson, 9 Abb. 33).
b. The court can only determine the questions of law that arise upon the facts agreed upon, and has no power to send the cause to a jury for the determination of questions of fact, that, upon the face of the submission, may appear to be doubtful. The court must itself construe the submission (Neilson V. Com. Mut. Ins. Co. 3 Duer, 455).
c. On judgment at general term in favor of defendant, he is not entitled to costs for any proceeding before notice of trial, nor to a fee before argument, nor for argument; but he is entitled to a trial fee (id. 683).
d. The plaintiff must furnish the necessary papers for argument. Rule 43.
§ 373. Judgment.
Judgment shall be entered in the judgment-book, as in other cases, but without costs, for any proceeding prior to notice of trial. The case, the submission, and a copy of the judgment shall constitute the judgment-roll.
$ 374. Judgment, how enforced or appealed from.
The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner.
Proceedings against Joint Debtors, Heirs, Devisees, Legatees, and Tenants holding under a judgment debtor.
SECTION. 375. Parties not summoned in action on joint contract may be summoned after judgment.
376. If judgment debtor die, his representatives may be sum
377. Form of summons.
378. Summons to be accompanied by affidavit of amount due. 379. Party summoned may answer and defend.
380. Subsequent pleadings and proceedings the same as in an
381. Answer and reply to be verified as in an action.
$375. (Am'd 1849.) Parties not summoned in action on joint contract may be summoned after judgment.
When judgment shall be recovered against one or more of
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.
a. 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. (Am'd 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 their ancestor (Roe v. Swezey, 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. Rawdon, 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.
b. 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 (Townsend v. Newell, 14 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 summons 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 execution, 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. (Am'd 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.
Judgment may be confessed for debt due, or for contingent liability.
Statement in writing, and form thereof.
§ 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).
¿. 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 as one of the firm,"-held that it not only meant to bind 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 v. Stellwagen, 25 N. Y. 315).