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then this obligation is to be void, otherwise to remain in full force. Sealed and delivered

[Signatures and seals.] in presence of [Signature of witness].

[Acknowledgment and affidavits of sufficiency of sureties, as in Forms Nos. 1, 252.]

CHAPTER III.

JUDGMENT WITHOUT PROCESS OR PLEADING.

[In addition to the modes treated, should be noted Arbitration, which, il conducted under the statute (N. Y. Code Civ. Pro., $ 2365, etc.), may result in a judgment, but cannot, however, determine a claim to an estate in real property in fee, or for life.] 44 Art. I. CONFESSION OF JUDGMENT.

II. SUBMISSION OF CONTROVERSY ON AGREED STATEMENT OF Facts.
III. REFERENCE OF CLAIM AGAINST DECEDENT.

ARTICLE I.

CONFESSION OF JUDGMENT.

1. Power of the court.
2. Practice under the New York stat-

ute.
3. - object of the statement of facts.
4. Amending
5. Verification.
6. Vacating judgment.

FORMS.
(348) Confession of judgment.-

Form for New York.
(349) Verification of confession of

judgment. (350) Statement of costs and dis

bursements on confessing

judgment. (351) Affidavit to disbursements. (352) Judgment on confession.

1. Power of the court.]— In the absence of statute, the court has julierent power to render judgment upon confession and neither process, pleading or appearance by defendant is a prerequisite. The statutory regulations have no relation to the court's jurisdiction, or the authority of its clerk to enter judgment. A neglect to obey statutory requirements will not make the judgment void between the parties, but only voidable at the instance of other judgment creditors. 45

A debtor may confess judgment to be entered in a State other than that in which he is at the time of executing the confession. 46

44 The statutory requirements must be observed in order to confer jurisdiction. Elec. Steel Elev. Co. v. Kam Malting Co., 112 App. Div. 686, 98 N. Y. Supp. 604.

45 Teel v. Yost, 128 N. Y. 387.

46 But the confession cannot be used as such in both. Manufacturers, etc., Bank v. Cowden, 3 Hill, 461; and see Same v. St. John, 5 id. 497; and Same v. Boyd, 3 Den. 257.

A judgment thus entered by confession in one State, will sustain an action in another State, unless the proceeding appears to have been unsupported by the law of the place where the judgment was rendered ; 47 such judgment is also open to a defense of

fraud. 48

52

2. Practice under the New York 'statute.]— The New York statute" allows a debt, whether due or not yet due,50 and whether absolute or contingent, or a contingent liability such as that of a surety or indorser, or a debt already discharged in bankruptcy, to be secured by confession by the debtor. If the debt is joint, one or more may confess judgment as against themselves; but the confession will bind only those who join, and will not bar an action against all.53

A tort is not the proper subject of confession of judgment under the New York statute 54 For such a cause of action a summons should be issued, and an offer of judgment made and accepted.

The confession is made by a statement of the facts, and consent that judgment be entered, which must be verified by oath, and may be filed at any time within three years, whereupon the clerk enters judgment, which bas the same effect as a judgment in an action.

#

3. — object of the statement of facts.]— The object of the statement of the facts is not to estop the debtor, although it has this effect,55 but to inform rival creditors of the basis of plaintiff's claim, that they may have information on which to examine into its good faith.56

47 Teel v. Yost, 128 N. Y. 387; Richards 1. Barlow (Mass., 1886), 1 New Eng. Rep. 577; Ritter v. Hoffman (Kans., 1886), 10 Pac. Rep. 576. The burden is upon the one claiming under the judgment to establish that it was duly entered under the laws of such state. Frebilcox v. McAlpine, 46 Hun, 469.

48 Frebilcox v. McAlpine, 62 Hun, 317, 42 St. Rep. 238. 49 N. Y. Code Civ. Pro., 88 1273–1278.

50 As to securing future advances, see Truscott 1. King, 6 N. Y. 147; Ackerman v. Hunsicker, 85 N. Y. 43, 39 Am. Rep. 621; Jaffray v. Saussman, 52 Hun, 561, 5 N. Y. Supp. 629; St. John, etc., Co. v. Smith, 82 App. Div. 348, 82 N. Y. Supp. 1025.

51 Cook v. Whipple, 55 N. Y. 150, 14 Am. Rep. 202.
52 Dewey v. Moyer, 72 N. Y. 70.
53 See Harbeck 1. Pupin, 123 N. Y. 115.
54 Burkham v. Van Saun, 14 Abb. Pr. (N. S.) 163.

55 Field v. Bland, 8 Abb. N. C. 221, 81 N. Y. 239; S. P., Gear v. Parish, 5 How. (U. S.) 168.

56 Wood v. Mitchell, 117 N. Y. 441; Teel v. Yost, 128 N. Y. 387; Weil v. Hill, 71 Hun, 133, 24 N. Y. Supp. 521.

4. Amending.]- If it be impracticable to state the requisite details at the moment, it may be better to enter the judgment upon the best statement that can be made, and rely upon amending subsequently nunc pro tunc, which the court have power to allow, even as against rival creditors,67 but not as against purchasers in good faith and for value. A confession fraudulently or inadvertently made for an excessive sum cannot be reduced, but is wholly void.99

5. Verification.] – The statute requires the oath of the defendant to the truth of the statement.60 It better be taken before a notary or commissioner who is not the attorney for either party.

61

6. Vacating judgment. ]-An action will lie, 62 though the more usual procedure is by motion. The judgment may be vacated for insufficiency of statement,

,64 usury,65 excess of judgment over real debt,66 fraud,67 etc.

The vacatur may be ordered upon the application of a junior

57 The court have power, either on motion or on an action brought for the purpose, to amend the statement of facts as well as other parts of the confes. sion of judgment, and may do so after sale for the purpose of sustaining the sale. Union Bank 1. Bush, 36 N. Y. 631; Bradley v. Glass, 20 App. Div. 200, 46 N. Y. Supp. 790.

They may do so in order to preserve a priority of lien over subsequent incumbrances, or may impose, as a condition of allowing the amendment, that the lien of the judgment shall be subordinate to outstanding incumbrances. The facts and circumstances of each case, as they arise, should be considered in determining the terms and conditions upon which the amendment may be allowed. Symson v. Silheimer, 40 Hun, 116, 105 N. Y. 660; Bradley r. Glass, supra; Blackmer v. Greene, 20 App. Div. 532, 47 N. Y. Supp. 113, aff'd, 154 N. Y. 749.

58 Lea v. Yates, 40 Geo. 56.

59 Simons v. Goldbach, 56 Hun, 204, aff’d, 123 N. Y. 637; III. Watch C). v. Payne, 39 App. Div. 521, 57 N. Y. Supp. 308.

60 But this not jurisdictional, and does not render the confession void, though voidable at the instance of certain creditors. Teel 0. Yost, 128 N. Y. 403.

61 See AFFIDAVITS, p. 12, of this volume. 62 Dunham v. Waterman, 17 N. Y. 9, 15. 63 Utter v. McLean, 53 Hun, 568, 6 N. Y. Supp. 281, 17 Civ. Pro. Rep. 150.

64 Wood r. Mitchell, 117 N. Y. 439. This objection may not be urged by the defendant. Miller t. Earle, 24 N. Y. 110; Harrison v. Gibbons, 71 id. 58.

63 Lansing 1. McKillup, 1 Cow. 35.

66 Ill. Watch Co. t. Payne, 39 App. Div. 521, 57 N. Y. Supp. 308; Simons v. Goldbach, 56 Hun, 204, 9 N. Y. Supp. 350.

67 Metcalf v. Moses, 35 App. Div. 596, 55 N. Y. Supp. 179; Utter v. McLean, 53 Hun, 568, 6 N. Y. Supp. 281. The defendant's fraud alone will not vitiate. Golle v. Tode, 148 N. Y. 270.

judgment creditor,68 receiver of judgment debtor,89 or bona fide purchaser.The expiration of one year from entry of the judgment does not defeat motion.71

FORM No. 348. Confession of judgment.- Form for New York. [Name of] Court.

[Names of all the], plaintiffs,

against [Names of all the], defendants.

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I, Y. Z., defendant herein, of

do hereby confess judgment in this court in favor of A. B. [and C. D.], above-named, plaintiff, for dollars, and hereby authorize the entry of judgment therefor, in his [or, their] favor and against me [or, us].

This confession of judgment is for a debt or liability now justly due [or, a debt justly to become due] to the said plaintiff from me [or, from me jointly with W. X., - or, if a contingent liability, say,- is to secure the plaintiff against a liability on my behalf], arising upon the following facts, viz. : [here state facts, for instance, thus:]*2

68 Chappell v. Chappell, 12 N. Y. 215. An attaching creditor may restrain enforcement of judgment pending the securing of his own judgment, as an incident of his action in equity to have the confessed judgment declared void. People ex rel. Cauffman v. Van Buren, 136 N. Y. 252. A fraudulent grantee cannot question the sufficiency of the statement. St. John, etc., Co. v. Smith, 82 App. Div. 348, 82 N. Y. Supp. 1025, aff'd, 178 N. Y. 629.

69 Seligman v. Franco-Am. Trading Co., 17 Civ. Pro. Rep. 342, 5 N. Y. Supp. 681.

70 Kendall v. Hodgins, 14 N. Y. Super. Ct. 659, 7 Abb. Pr. 309. 71 Winnebrener v. Edgerton, 30 Barb. 185, 8 Abb. Pr. 419.

72 It would be impracticable to even 154 N. Y. 749; Bradley v. Glass, 20 comment upon the forms 'under con App. Div. 200, 46 N. Y. Supp. 790. sideration in the following cases, but Account stated: Critten v. Vrendenthe practitioner is referred to them as bergh, 151 N. Y. 536. Promissory useful to consult in framing his state notes: Mather v. Mather, 38 App. ment of facts under similar situa Div. 32, 55 N. Y. Supp. 973; Rothstions. Money loaned: Fuller r'. Straus, child v. Link, 29 App. Div. 580, 51 44 App. Div. 348.60 N. Y. Supp. 7, 17; N. Y. Supp. 253; First Nat. Bank Mather 1. Mather, 38 App. Div. 32, v. Carleton, 43 App. Div. 6, 59 N. Y. 55 N. Y. Supp. 973; Miller v. Kosch, Supp. 635; Flour City Bank v. Doty, 74 Hun, 50, 26 N. Y. Supp. 18; Wood 41 Hun, 76, 11 Civ. Pro. Rep. 141; 0. Mitchell, 117 N. Y. 439. Goods Wild v. Porter, 22 App. Div. 179, sold: Blackmer v. Greene, 20 App. aff’d, 173 N. Y. 619. Contingent liaDiv. 532, 47 N. Y. Supp. 113, aff'd, bility: King v. Munger, 28 N. Y.

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