« PreviousContinue »
[If confession is by a married woman.]95 Said debt was contracted by me for the benefit of my separate estate, which said estate, consisting of [briefly indicating it], belonged to me at the time aforesaid (or, said debt was contracted by me in the course of my trade or business of — milliner — which said trade or business was carried on by me at
at the times aforesaid, on my sole and separate account]. [Date.]
[Signature of], Defendant.
FORM No. 349.
Verification of confession of judgment.96 [Venue.]
Y. Z., being duly sworn, says, that he is the defendant named in and making the above confession, and that the matters of fact therein set forth are true. [Jurat.]
[Signature.] FORM No. 350. Statement of costs and disbursements on confessing judgment.96a [Title as in Form No. 348 (above).]
Costs allowed by $ 1275 of Code of Civ. Pro..... $15 00
$ FORM No. 351.
Affidavit to disbursements. [Venue is enough when affidavit is subjoined to above statement.]
0. P., being duly sworn, says, he is [the managing clerk in the office of] the attorney for the plaintiff above-named; and, that the disbursements above-mentioned have been made herein, or will be necessarily made or incurred herein, as he verily believes. [Jurat.]
[Signature.] 95 This statement is no longer neces. facts stated to be true.” Ingram v. sary in New York since the amend. Robbins, 33 N. Y. 409. ment of 1897 (L. 1897, chap. 38), to An omission of verification is not a § 1273 of the Code.
jurisdictional defect, but renders the 96 “ The statement must be verified judgment voidable by creditors. Teel by the oath of the defendant, to the v. Yost, 128 N. Y. 387. effect that the matters of fact therein 962 The costs need not be made a set forth are true.” Code Civ. Pro., part of the confession; but so doing $ 1274, last clause. Insufficient to will not affect its validity. Anderson state that defendant “ believes the
1'. Shutts, 114 App. Div. 308.
FORM No. 352.
Judgment on confession.97 [Title as in Form No. 348 (above).]
On filing the statement and confession of Y. Z., the defendant herein, verified the
and on motion of 0. P., attorney for the plaintiff, it is adjudged that the plaintiff, A. B., recover of the defendant, Y. Z., dollars, together with dollars costs and disbursements as taxed, amounting in all to dollars. Judgment this
19 [Signature of], Clerk.
97 If the debt for which the judgment is rendered is not all due, execu
tion thereon must be limited to the sum due. Code Civ. Pro., & 1277.
ARTICLE II. SUBMISSION OF CONTROVERSY ON AGREED STATEMENT OF
Facts. 1. Power of the court.
10. Amending. 2. Reasons affecting election. 3. Submission pending an action. FOBMS. 4. Parties.
(353) Statement of facts agreed for 5. The statement,- facts.
submission. 6. of actionable controversy.
(354) Verification of agreed state7. Verification,
ment of facts. 8. The practice.
(355) Judgment on agreed state9. The judgment.
ment of facts, 1. Power of the court.]-A court of general jurisdiction has power, in any case of which it might take cognizance upon compulsory process, to act upon a voluntary appearance and admission of facts by the parties if they are of full age and competency. The provisions of the statutes regulate the exercise of this power; but even where such statuies designate the proceeding as not being an action, as the former New York Code did," the court have power to treat it as an action, and an appellate court may review the judgment accordingly; and it is the better opinion that it should be regarded as an action so far as concerns the proceedings to reach a judgment on the facts presented, and the enforcement or review of the judgment.
2. Reasons affecting election.]— By such a submission the parties may go direct to the Appellate Division of the Supreme Court in the first instance; but they waive the right to an attachment, arrest or temporary injunction; and to any further proofs, or a reference; the right of amendment is not so freely allowed as in an adversary action; and the costs are always discretionary, and not allowable for any proceedings before notice of trial. In other respects, all proceedings proper in actions for the same relief are available.2
97a This article relates only to a submission without action. If, after action brought, the parties submit their rights upon an agreed state of facts, an ordinary stipulation will suffice. See STIPULATIONS, Vol. II,
98 N. Y. Code Civ. Pro., $ 372, superseded by Code Civ. Pro., & 1280, wherein it is provided that the controversy becomes an action after the filing of the submission.
99 Aldrich v. Ætna Company, 8 Wall. 491 (where it was held that although designated by the Code as a submission without action, the proceeding, though without any compulsory process, is, when once set in motion, for all purposes of determination and review an action or suit, and is so treated).
Compare, however, Lang v. Ropke, 1 Duer, 701 (where stress was laid on the fact that the proceeding was not then an action).
1 N. Y. Code Civ. Pro., § 1281.
2 N. Y. Code Civ. Pro., $ 1280. As to new trial in ejectment, compare Lang v. Ropke, 1 Duer, 701, with Id., 88 1524-1526.
3. Submission pending an action.]— If the parties thus submit the controversy in a pending action, the court may render judg. ment; but meanwhile the submission should be deemed to work a discontinuance of the action if it be in another court; and if both proceedings are in the same court, the submission is a suspension of the action, and judgment on the submission will work a discontinuance of the action. In either case judgment on the submission may
be interposed to bar further proceedings in the action.
4. Parties.]— All persons whose presence would be necessary as parties in an action for the same purpose must join in the agreement of submission or it must be dismissed.* If any are not competent by reason of infancy or mental disability, it precludes submission."
A public officer, or receiver, or trustee, since he has to some extent power to admit facts for the purposes of trial, has to the same extent power to agree on a case ; but a trustee may wisely ask leave, either in the submission, or previous to filing it; unless the certainty of the facts — as in case of submission of the construction of a will — renders it superfluous to do so.
5. The statement,- facts.]—All facts necessary to enable the court to render the judgment must be agreed upon." The parties must agree on the facts; it is not enough to agree on the evidence. On the other hand, however, a statement, though involving a con
3 Dictum in Van Sickle r'. Van Sickle, 8 How. Pr. 265. 4 Kennedy v. Mayor, etc., of N. Y., 79 N. Y. 361 (reversing judgment and dismissing proceedings, because, in a controversy between the city and one of two claimants to the salary of the same office, the other claimant did not join).
So in City of Buffalo v. Mackay, 15 Hun, 204, where the right to the salary depended on the present title to the office, the proceedings were dismissed because the people were not a party, but the court in an advisory way expressed its opinion on the rights of the claimant before it.
S. P., Union Natl. Bank 1. Kupper, 63 N. Y. 617. (Construction of a will.) Schreyer v. Arendt, 83 App. Div. 335, 82 N. Y. Supp. 122 (real estate title).
5 The guardian of an infant has no power to enter into a submission for the infant. Coughlin v. Fay, 68 Hun, 521, 22 N. Y. Supp. 1095; Lathers t. Fish, 4 Lans. 213.
6 In Waring r. O'Neill, 15 Hun, 105, the court noticed this question, but as it was not raised by either party, decided the case without determining the point.
7 Am. Box Mach. Co. 1. Zentgraf, 45 App. Div. 522, 61 N. Y. Supp. 417, 7 Anno. Cas. 182; Kneller v. Lang, 137 N. Y. 589.
8 Suydam *. Williamson, 20 Ilow. U. S. 427; Glenn v. Fant, 134 U. S. 398: Began v. Curtis, 81 App. Div. 91, 80 N. Y. Supp. 929; Clark v. Wise, 46 N. Y. 612 (rev'g 57 Barb. 416, and dismissing the proceedings, because the submission which was of the question whether a conveyance was fraudulent as against creditors, did not agree on the intent with which it was made, but left that to be inferred from the circumstances agreed on, the case being one in which the statute makes intent a question of fact).
clusion of law, may be held conclusive on the party as limiting the facts agreed on.' It must not provide for any judgment different from what the law would pronounce on the facts, but must leave the court free to award whatever judgment is proper.10 Hence the old form of stating facts and propounding questions, with a stipulation for judgment to one effect or another, according as the questions may be answered, is not now appropriate." It may, however, state what relief each party demands. If it fails to do so, and merely propounds questions to be answered, it may be dismissed.12
6. - of actionable controversy.]— It is not enough to state a controversy, but the submission must show a cause of action, that is to say, a difference of such a nature and so asserted that an action would lie at once.13 Hence all formalities of demand, etc., which would be necessary before suit, must be included in the statement.
7. Verification.]— The statutory affidavit verifying the statement is essential.14
9 Fearing r. Irwin, 55 N. Y. 486 (aff'g 4 Daly, 385, where a statement in the submission that when said highway shall have been closed by law the title will revert to A., was held to be, for the purposes of the submission, an agreement on a fact, and to leave only the question whether the other facts constituted a closing by law).
10 Wood r. Squires, 60 N. Y. 191, dismissing proceedings, because, on facts which would call for specific performance, it was agreed that judgment for different relief should be rendered instead.
11 McKethan 1. Ray, 71 N. C. 165; Wood v. Squires (above).
Under the English practice, and perhaps elsewhere, the agreement may provide for ascertaining the sum recoverable, if any, by specifying it, or by authorizing the court to ascertain it, or direct in what manner, as by reference or otherwise, it shall be ascertained.
Under N. Y. Code Civ. Pro., § 1223, as the agreement may fix the amount of debt or damages as a matter of fact, subject to the determination of all questions of law, it is unnecessary to stipulate for a reference or a writ of inquiry.
i2 Wood r. Squires (above); Williams v. City of Rochester, 2 Lans. 169.
13 People v. Mutual Endowment, etc., Assoc. of Bath, 92 N. Y. 622. Here the statement was that the corporation defendant had issued certain certifi(ates, and the plaintiff insisted that they had no right to do so. Held, that as there was no statement that the defendant asserted such right at the time the submission was made, or did not yield to the claim of the plaintiffs, the question, so far as appeared, might be a mere abstract one not involving any actual difference or controversy. See, also, Judson v. Flushing Jockey Club, 14 Misc. 350, 36 N. Y. Supp. 126; Beers v. N. Y. Life Ins. Co., 66 Hun, 75, 20 V. Y. Supp. 788; Kelley v. Hogan, 69 App. Div. 251, 74 N. Y. Supp. 682; Clapp v. Guy, 31 App. Div. 535, 52 N. Y. Supp. 33.
14 Keeline v. City of Council Bluffs, 62 Iowa, 450; 8. C., 17 N. W. Rep. 668. The court say:
“ The object of the statute is to withhold from the considera