Johnston v. McAusland — 9 Abb. Pr. 214

Majority

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JOHNSTON a. McAUSLAND.

Supreme Court, First District;

General Term, September, 1859.

Headnote

Judgment by Confession.—Sufficiency of Statement.—Authority of Attorney.

A statement that “ the judgment is confessed for a debt justly due to the plaintiff arising upon the following facts : On or about the 18th day of December, 1858, the plaintiff lent or advanced to the defendant in cash the sum of two thousand dollars, 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,” is sufficient.^[1]

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Stating the loan to have been made on or about the day mentioned is not indefinite and uncertain.

During the creditor’s absence from the country, an attorney without the creditor’s knowledge, accepted from the debtor a confession of judgment, and entered judgment thereon, and afterwards received from the creditor’s partner a request to proceed and issue execution.

Held, that the acceptance of the judgment was sufficient as against creditors whose judgments were recovered subsequent to the time when the attorney received such request.

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Appeal from an order granting a motion to vacate judgment entered by confession.

The confession of judgment was in the following form:

[Title of the Cause.]

“ I do hereby confess judgment in this action in favor of the plaintiff for the sum of two thousand and eighty dollars and twenty-four cents, and authorize judgment to be entered therefor against me.

“This confession of judgment is for a debt justly due to the plaintiff, arising upon the following facts: On or about the

18th day of December, 1858, the plaintiff lent or advanced to the defendant in cash, the sum of two thousand dollars, 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, and which said sums of principal and interest, amount to the said sum of $2080.24.”

This judgment was entered in the office of the clerk of the city and county of New York, on the 10th day of August, 1859,

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and an execution was issued and levied on the property of the defendant.

On the nineteenth day of the same month, J. Houldsworth and other creditors of McAusland recovered against him a judgment, which on that day was docketed in the office of the clerk of the city and county of New York, and execution issued.

These latter creditors now moved to vacate the confession of judgment. The affidavit on which the motion was made, alleged among other things, that the plaintiff was, and long had been a resident of New Orleans, and at the time of the entry of the judgment, and for a long time previous thereto had been in Europe ; that for a considerable time previous to the entry of the judgment, the attorney who entered it had acted as the attorney of the defendant, and that he was unacquainted with the plaintiff, and had never received any request or authority from the plaintiff to act for him in the matter of the confession of judgment.

The affidavits to oppose the motion, were to the effect that the plaintiff’s attorney was employed by a third party acting in behalf of the plaintiff; that the attorney at the time expressed to him a desire to have a written retainer from plaintiff, and he immediately telegraphed to New Orleans to the brother and partner there of the plaintiff, and that on the fifteenth of August the attorney received in return a written authority, signed by the brother of the plaintiff in the plaintiff’s name.

The motion was granted at special term; and the plaintiff appealed to the general term.

Charles Tracy, for the appellant.

H. H. Morange, for the respondents.

I. The statement is insufficient in the following respects: The words “ on or about the 18th day of December,” are indefinite and uncertain. If the money was loaned in one sum, the exact date should be stated; if in several sums and at various times, each sum and the respective dates should be specified. It should also appear that that no part of the moneys loaned had been repaid; to state that the amount claimed was justly due, was to state a

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conclusion of law. The statement must show that the amount was justly due. (Code, § 383, subdiv. 2.)

II. There must be some one authorized to appear for the plaintiff, and accept the confession on his behalf. The act of the attorney for the plaintiff, without the knowledge or approbation of the plaintiff was insufficient, and a badge of fraud.

We are of opinion that the judgment was sufficiently accepted by the appellant, before the respondents recovered their judgment. The judgment by confession was entered on the 10th of the month while Johnston the plaintiff was in Europe. On the 15th of the month the attorney received a dispatch from Johnston’s partner directing him to issue execution. This was a sufficient acceptance ; and the respondents are not authorized to object to the judgment on the ground of a want of acceptance before the recovery of the second judgment.

The statement contained in the confession that the loan was made on or about the 18th day of December, 1858, is sufficiently definite.

The order appealed from must be reversed, with costs.