Winnebrenner v. Edgerton — 30 Barb. 185

Majority

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Winnebrenner vs. Edgerton.

Headnote

A motion to set aside a judgment entered upon confession, on account of the defectiveness of the statement, is not founded upon an irregularity, so as to require the moving party to specify in his motion papers the grounds of the motion.

Defects of that nature are not mere irregularities. They are matters of substance, and if established, render the judgment void.

Requisites of the statement of indebtedness, upon which a judgment by confession is to be entered.

APPEAL from an order made at a special term, denying a motion to vacate a judgment entered on confession, on the ground of the defectiveness of the statement of consideration.

J ones, a subsequent judgment creditor of the plaintiff in this case, moved to set aside this judgment, upon the ground that the statement on which it

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was entered was not in conformity with section 383 of the code. It is a mistake in the counsel for the plaintiff to suppose that this motion is founded on any irregularity in entering up the judgment. If it had been, then it would certainly be necessary for the moving party to specify in the moving papers the grounds of his motion. The defects complained of are not mere irregularities. They are matters of substance, and if established, render the judgment void. (Von Beck v. Shuman, 13 How. Pr. R. 472. Dunham v. Waterman, 6 Abbott’s Pr. R. 357; S. C., 3 E. P. Smith’s 17 N. Y. R. 9.) In the latter case, the court of appeals held that when the object of the party was only to set aside the previous judgment, the proper method of attaining it was by motion. And the court also held that the judgment, having been confessed without a compliance with the provisions of the code, was to be deemed fraudulent and void as to other judgment creditors of the defendant. The justice at special term held that the first, third and fourth statements of causes of indebtedness were sufficient, and denied the motion to vacate the judgment, so far as it covered them. From that denial an appeal has been taken to this court.

The first cause of indebtedness is stated in these words : “ Amount due from the defendant to the plaintiff, for plaintiff’s liability and guarantee, now past due, to Eichard S. Williams, as president of the Market Bank, city of New York, $8005.43.

Third. Amount of one promissory note, indorsed by the plaintiff for defendant, due July 10, 1858, and held by C. Dord & Co., $2220.85.

Fourth. Amount of two promissory notes, indorsed by plaintiff for defendant, one due April 27,1858, and the other due on the 27th day of June, 1858; both held by the Importers and Traders’ Bank of the city of New York, for the sum of $5508.86.”

Subdivision 2 of section 383 of the code declares, that if the judgment be confessed for money due, or to become due,

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the statement in writing required must state concisely the facts out of which it (the money due, or to become due,) arose, and must show that the sum confessed therefor is justly due, or to become due. And the third subdivision of that section declares, that if it (the judgment) be for the purpose of securing the plaintiff against a contingent liability, it (the statement) must show concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same.

The court of appeals, in Chappel v. Chappel (2 Kern. 215,) in considering a judgment confessed under the second subdivision of this section, hold that the creditors are entitled to the facts out of which the indebtedness arose; that the statute looks not to the evidence of the demand, but to the facts in which it originated; in other words, to the consideration which sustains the promise. The rule laid down in this case has been followed in Purdy v. Upton, (10 How. Pr. R. 494;) Boyden v. Johnson, (11 id, 503;) Von Beck v. Shuman, (13 id. 472;) Kendall v. Hodgins, (7 Abbott’s Pr. R. 309;) Dunham v. Waterman, (6 id, 357; S. C., 3 E. P. Smith’s 17 N. Y. R. 9.) All these cases, except the one in 11 Howard, are confessions of judgments under subdivision 2 of section 383 of the code.

But the code requires that if the judgment be given to secure the plaintiff against a contingent liability, the statement required must state concisely the facts constituting the liability; using precisely the same language as in subdivision 2 of the same section. How it cannot be contended that these statements show the facts constituting the liability of the plaintiff to pay the several sums mentioned therein. In statement first, no particulars of the defendant’s indebtedness are stated to show whether, in truth, he owed the plaintiff any thing, or of the liability or guaranty therein referred to. It is not stated for whom the liability was given, or upon what consideration. Ho particulars of the guaranty are

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given; no statement showing how or why the plaintiff is bound to pay any thing on such liability or guaranty.

[New York General Term,

May 2, 1859.

So, in regard to the promissory motes in statements three and four, the facts in regard to them are not only not concisely stated, but: are not stated at all. It does not appear whose notes they are, or that the liability of the plaintiff on them is a liability incurred on behalf of the defendant, and one which he is under any legal obligation to protect. Ho consideration for the promise of the defendant to pay the amount of these notes is shown. It is said they are notes indorsed for the defendant, by the plaintiff, but whose notes is not stated, or how indorsed, or why, for the defendant. In Boy den v. Johnson, (cited supra-,) Strong, J., said: “The statement in question, (in that case,) so far as relates to future sales, is objectionable, not only on account of its indefiniteness, but as no facts are stated showing any obligation to sell any goods at any future period. If a judgment by confession can be allowed to have any future indebtedness, it should he particularly specified, and it should he called for by some existing liability, The code is explicit, that when the object is to secure the plaintiff, against a contingent liability, there must be a statement of the facts constituting the liability.”

In the present case there is no statement of any facts showing the liability of this plaintiff to the defendant to pay these several notes, nor any fact stated, showing the liability of the defendant to repay the same to the plaintiff. For aught that appears in these statements, the liability of the plaintiff may have been incurred for some other person than the defendant. I have no doubt that the statements are defective, and the order appealed from, holding them sufficient, is erroneous, and should be reversed.

Order reversed.

Roosevelt, Davies and Clerke, Justices.]