The judgment in favor of the defendants French was clearly void, as it appeared that no action had ever been commenced against them by the service of a summons and complaint, and there was no confession of judgment, or authority given to enter one. Section 134 of the code requires that the service of a summons shall be made by delivering *Page 295 a copy thereof to the defendant personally. Section 246 provides that judgment may be had in an action on contract, for the recovery of money only, if the defendant fails to answer, upon the plaintiff's filing with the clerk, proof of personalservice of the summons and complaint on one or more of the defendants, or of the summons alone pursuant to section 130. It will be perceived that the defendants, Clark Hadwin, did not admit personal service of the summons and complaint. They merely admitted service of the summons and complaint on the 23d of January, 1854, without stating the mode in which the service was made. For aught that appeared the service may have been by publication under section 135, and the time of publication could not have elapsed when the judgment was entered. The summons and complaint may have been deposited in the post office at Ogdensburgh, in compliance with an order for publication. The written admission of a defendant of the service of a summons and complaint should state that the service was personal, by the delivery of a copy thereof to him, or the clerk has no power or authority to enter judgment under section 246 of the code. The proceeding by the Frenches was, in no sense, a confession of judgment; I think it was a nullity. The court had no jurisdiction until the service of the summons as prescribed by the code. But if the judgment in favor of the Frenches was a valid judgment, I think the evidence in the case was sufficient to show an understanding and agreement on the part of their attorneys that the judgment in favor of Read should be first entered up, and such proceedings taken as would secure his demand. Clark Hadwin told Mr. Vary, when they applied to him to draw the confession, that they were owing Read and had agreed to secure him, and that they wished to give Read a judgment, and that Allen had commenced a suit and was about to take judgment. It certainly could not have been contemplated by Clark Hadwin, or by Vary Clarke, that any proceedings should be taken by the latter to *Page 296 defeat the object which Clark Hadwin had of securing Read. And as the Frenches had, as yet, commenced no action, Vary Clarke were bound to do nothing which should defeat the purpose of Clark Hadwin, which was made known when the confession was signed. The testimony of Vary goes to establish the agreement which the plaintiffs allege. He says that the admission of service of the summons in Frenches' case, was not spoken of until the confession was signed, and that he told Clark Hadwin that his object was to get ahead of the judgment of Allen, and that was all that was said. No intimation was given that the admission was to be used for the purpose of defeating the object of securing Read's demand. Vary knew, at the time, that Clark Hadwin were insolvent. They had talked of a compromise of their debts at 50 cents upon a dollar, and Winters' verification of the complaint in the French suit stated that Clark Hadwin told him they could only pay $100 on the demand. He also testified that he supposed the court would set aside the French execution if an application was made by Read, and that he gave the stipulation to postpone it to Read, in order to avoid the motion. The stipulation made when Vary testified the whole transaction was fresh in his mind, stated that it was the intention of Clark Hadwin to have Read's execution ahead of French's. He also testified that Clark Hadwin told him, at the time he drew the confession, that their object was to secure Read. Upon this evidence no honest mind could fail to come to the conclusion, that the agreement alleged in the complaint was fully proved. As no action had as yet been commenced by the Frenches, I think their attorneys were at liberty to make such agreement, and that the Frenches are responsible for the violation of it, or at all events can not reap the fruits of its violation. It appeared too that Vary Clarke were attorneys for non-resident creditors, to collect the demand of the Frenches, and there can be no doubt that they had authority to give the stipulation postponing the execution *Page 297 of the Frenches to that of Read, (Corning v. Southland, 3 Hill, 552.) Ignoring the stipulation, they professed to act for the Frenches alone and to protect their interests, and did not violate the rule of law which prohibits a person acting as the agent of both parties to a contract. As the amendment of the complaint, allowed by the judge, changed the entire nature of the action, I think it was unathorized, but, if the views already expressed, as to the effect of the evidence on the question of the agreement to give Read's judgment preference over the Frenches, are correct, no amendment was necessary. Within the recent decisions of this court, the confession of judgment to Read was in conformity with the requirements of the code. (Neusbaum v. Keim, 24 N.Y. Rep. 325.)
The judgment should be affirmed.
All the Judges concurring,
Judgment affirmed.