Clements v. Gerow

We have had occasion frequently to examine the statements authorizing the confession of judgments under section 383 of the Code of Procedure. The principles enunciated in the various cases which have been under consideration in this court will, in their application, dispose of most, if not all the questions which can arise under this section. Two or three late cases decided here, are conclusive upon the question raised on the present appeals. The statements in the judgments in favor of Clements and Ryder, are in substance identical. The difference is of no moment. In the former case the money is stated to have been lent to the plaintiff by the defendant on a day certain. In the latter, the money is stated to have been borrowed by the defendant of the plaintiff, in June, 1855. In either case the facts are stated with suffi

The doctrine of these two cases fully sustains the correctness of the statement of the cases of Clements and-Ryder. It is urged that the statements do not state anything as to the amount due; this we think an error; we think a natural and obvious construction of the language used in Clements’ case is, that the amount due to him from the defendant, on the day of the confession, was the sum of one thousand two hundred and twenty-eight dollars and thirty cents, and that that sum was made up of a certain sum of money loaned by the plaintiff to him on April 1, 1856, together with the interest thereon from April 1, 1857, to September 17, 1857, the date of the confession, and that the aggregate of principal and interest due on that day was one thousand two hundred and twenty-eight dollars and fifty cents; an arithmetical calculation from these data, will speedily and accurately determine the precise amount of principal and of interest separately entering into the amount of the in

The confession in the case of Carpenter and others enumerates with particularity the articles sold and delivered by the ■plaintiff to the defendant, and the total amount thereof, to wit, one hundred and ninety dollars. It is true that it omits to state the date of the sale of each particular article, and the price thereof, but it sets forth the nature and kinds of goods purchased by the defendant of the plaintiff, and the time within which they were bought, namely, within two years preceding September 17, 1857. Reference was made to a schedule which it was intended to have annexed to the statement, but which would seem, for some reasons not stated, to have been omitted. If the statement is sufficiently concise within the language and meaning of the Code, its omission would not invalidate the judgment. In Neusbaum v. Keim, 24 N. Y. 325 , we held a statement sufficient which was in this form: “ this confession of judgment is for a debt justly due to the plaintiff, arising upon the following facts: the said plaintiff, at various times in the years 1854 and 1855, sold and delivered to me large quantities of meat, and upon such sale there is now justly due to the plaintiff as aforesaid a balance of the said sum of two thousand one hundred and fourteen dollars and sixty cents, with interest thereon from the 18th day of January, 1855.”

Wc said, in reference to the statement, that it imported to a common intent, a dealing in butcher’s meat between the parties, in which Keim was the purchaser from Heusbaum, and a delivery of the different parcels at divers times, so as to constitute an account between them. This indicates the facts out of which the indebtedness arose, as plainly as it could be done, without copying the items of the account. That such a prolix statement as a bill of parcels was not contemplated is evident from the admonition in the section (383) that the facts must be stated concisely. This case also disposes of the objection now urged, that the omission of the schedule referred to in the statement, made the judgment invalid. In G-andall v. Finn, the confession, after setting forth the amount for which judg

The confession in each of these cases is for money due, and the statement in each shows the amount for which the judgment is to be entered, and that the sum confessed is justly due to the plaintiff. It also states concisely the facts out of which the indebtedness arose. The principal objection is that in neither statement is it set out, in express and specific terms, that the indebtedness was for the precise sum for which judgment is confessed. But it is unnecessary that this should be set out in exact and precise terms if the fact is made to appear by the statement. Lanning v. Carpenter, 20 N. Y. 447 , 458. The fact certainly does appear from each of these statements. In each case the confession is for a certain amount stated, and for which judgment is authorized to be entered. The statement then proceeds; “ This confession of judgment is for a debt justly due” from the defendant to the plaintiff. .Here, then, is a definite and certain amount confessed, and the further unqualified statement that the confession is for a debt justly due. It says plainly, I confess judgment for this amount which is justly due. This is

The order of the special term of the supreme court, setting aside these judgments, and the order of the general term affirming the same, should therefore both be reversed.

All the other judges concurred, except Seldest, J., who was absent, and Hogeboom, J., who was for affirmance.

Orders of general and special terms reversed with costs.