Trier v. Herman — 24 N.Y. St. Rep. 552

Majority

p. 552

Seligman Trier et al., App’lts, v. Edward Herman et al., Resp’ts.^[1]

(Court of Appeals,

Filed June 25, 1889.)

Headnote

Judgment—Debtor and creditor—Remedy op creditor—Code Civil Pro., §§ 738, 3010.

A creditor cannot compel his debtor to give a confession of judgment, and if he cannot obtain one, he may serve a summons in an action and take judgment after a trial or by default, or he may serve a summons and complaint., and obtain an offer of judgment under Code Civil Procedure, § 738. If his practice is regular and his claim and proceedings are honest and bona fide, no court will deprive him of the advantage his judgment gives him.

Appeal from a judgment of the supreme court,' general term, first department, affirming an interlocutory judgment sustaining a demurrer to the plaintiff’s complaint.

Alex. Rlumenstzel, for app’lts; Geo. H. Yeaman, for resp’ts.

A creditor may obtain a judgment against his debtor in either one of three»ways: (1). He may serve a summons in an action and take judgment after a trial or by default, and he must pursue the regular practice to that end. (2). He may serve a summons and complaint, and obtain an offer of judgment from the defendant, and upon that enter judgment under section 788 of the Code; and, if he adopts that course, he must pursue the practice prescribed; or (3), he may obtain a judgment by confession in the manner provided in section 3010, etc.," of the Code. He has the statutory right to pursue either of these methods. He may pursue one for the express purpose of avoiding the other,

p. 553

because the statute gives him the absolute choice. If his practice is regular and his claim and proceedings are honest and bona fide, no court will deprive him of the advantage his judgment will give him. He cannot compel his debtor to give a confession of judgment, and if he cannot obtain one, he must pursue one of the other methods.

Here there is no claim that defendants’ practice was irregular, or that the debt for which judgment was taken was not actually due, or that there was any fraud or bad faith practiced upon any one.

This case is unlike that of White v. Cotzhausen ( 129 U. S., 329 ), because in that case there was but one statute regulating the matter and that was violated ; and it is more like the case of Beards v. Wheeler ( 11 Hun, 539 , and 76 N. Y., 213 ).

For these reasons and those expressed more at large in the opinion of the general term, the judgment should be affirmed, with costs.

All concur.