Wood v. Mitchell — 27 N.Y. St. Rep. 704

Majority

p. 704

Charles Wood, App’lt, v. William Mitchell, Resp’t. Robert Parkinson, App’lt, v. William Mitchell, Resp’t.^[1]

(Court of Appeals,

Filed December 3, 1889.)

Headnote

■Confession of judgment—Code Oiv. Peo., § 1274.

The statement in a confession of judgment that “ the said sum of $5,000 is a balance due to the said plaintiff of various sums of money loaned and advanced by him to me, the said defendant, during a period from about July 1, 1886, to date, and includes interest upon such loans and advances to this date,” is indefinite as not “ stating the facts concisely out of which the debt arose,” as required by § 1274, Code Civ. Pro.

Appeal from judgment of supreme court, general term, first department, reversing order of special term denying plaintiff’s motion to set aside judgment in favor of Thomas G\ Mitchell and ■ others.

James C. Bergen, for app’lts; Everett D. Barlow, for resp’t.

The Code, § 1274, provides that the written statement upon which a judgment by confession may be entered, if the judgment to be confessed is for money due, or to become due, “must state concisely the facts out of which the debt arose;” and this was also the requirement of the Code of Pro., §§ 388.

It is claimed on behalf of the moving party here that the statement upon which the-judgment assailed was entered does not comply with this requirement. It is as follows:

“ This confession of judgment is for a debt now justly due to the said plaintiff from me, arising from the following facts, viz.: the said sum of $5,000 is a balance due to said plaintiff of various sums of money loaned and advanced by him to me, the said defendant, during a period from about July 1st, 1886, to date, and includes interest upon such loans and advances to this date.”

Many decisions construing § 383 of the Code of Procedure and §" 1274 of the present Code have been made. But no decision has come to our attention holding that such an indefinite and deficient statement as the one here is sufficient. The ' concise statement of facts out of which the indebtedness arose is required so that any party interested may be able to investigate the matters and thus ascertain whether the confession of judgment was accurate, honest and bona fide. It may also be supposed that it was the purpose of the legislature that the statement of facts should be so definite that the affiant would be exposed to punishment for perjury in case of any misstatement. This statement is in the highest degree indefinite. The moneys are alleged to have been loaned at various times during a period of nearly two years. There is absolutely no information as to the amount of the loans. They may have amounted to $10,000 or $100,000, the indebtedness having been reduced by payments or off-sets to less than

p. 705

$5,000. No dates of the loans are given, and it is not stated how much of the $5,000 was for interest and how much for principal. The statement should at least have stated the interest and principal .separately, or have given the data from which the amounts of the two items could be ascertained. If this statement should be held sufficient, the statutory requirement would be substantially nullified.

We are, therefore, of opinion that the orders of the general and special terms should be reversed and the motion granted, with costs to the appellant of appeal to the general term and to this court, and ten dollars costs of the motion.

All concur, except Danforth and Beckham, JJ., not voting.