The statement upon which this judgment is confessed is challenged on two grounds: first, that the amount professed to have been loaned in one of the items, and the amount professed to have been advanced for the defendant’s use in the other, is not stated: the argument being that the loan or advance of a very small sum, such as one dollar, in each case, would satisfy the language of the paper; and, second, that there is a failure to state the circumstances connected with the indebtedness with the particularity required 'by the statute.
By the law and the former practice of the courts, a judgment might he confessed for any amoqnt which the parties pleased to insert in the bond and warrant of attorney; and there was no need of any reference in the papers to the particlars out of which the indebtedness arose. Dnder this state of the law, a subsequent creditor who might suspect the good faith of the incumbrance thus interposed, would have no means furnished by the record, of investigating the subject. The legislature interposed, in 1818, a provision requiring the plaintiff to place on file a particular statement and specification of the nature and consideration of the debt; and, if this was
When the general revision of the statutes was enacted in 1830, it was not thought wise to return to that policy. It may be that the experienced lawyers who were concerned in compiling that system, had a recollection of the evils which led to the repeal of the act of 1818. However this may be, it has happened that after the lapse of forty years it has been thought judicious to recur in a modified manner to the policy which dictated that act. It is apparent, as has often been mentioned, that the sections of the Code which provide for confessions* of judgment without action, have in view the same ends with the act of 1818, and it may be said, in a general way, to. be a return to the policy of that act. But they adopt somewhat different means to accomplish the end. They require the oath of the alleged debtor as to the existence and amount of the indebtedness, which the former act did not. The statement is to be made by the defendant, and not by the plaintiff. Instead of a f articular statement and specification of the nature and consideration of the debt, as prescribed by the former act, there is to be a concise statement of the facts out of which the debt arose, and showing that the sum confessed is justly due. If the author of this section penned it with the act of 1818 before him, or in his mind, as has been suppdsed, there was certainly an intention to relax the strictness of the requirement and to abridge the extent of detail. The observations of the supreme court in Lawless v. Hackett, 16 Johns. 149, to the effect that the statement ought to be as particular as a bill of particulars,
In most cases such an account would be anything but concise. This could not possibly have been intended, and we have so held in at least two cases. Neusbaum v. Keim, 24 N. Y. 329; Gandall v. Finn.* In my opinion they are the general facts out of which the indebtedness arose, and not a particular specification of these facts, which the law requires. There must be enough to identify the transaction, if there was really one, so that the parties interested may make further inquiries respecting it, and there must be allegations enough, if true, to show that the amount for which the judgment was confessed was justly dtib. We have decided that the mere statement that the plaintiff held the note of the defendant»was not sufficient, as it clearly is not; for one might be given on the day on which the judgment was confessed. Chappel v. Chappel, 12 N. Y. 215, 219. But wre have not said that the existence of a note or other obligation in the hands of the creditor is of no account in determining the sufficiency of the statement. If given for a consideration satisfactory to the parties, and in the ordinary course of business, at a considerable period before the confession of judgment, it would be an important fact in showing how the debt arose. It would not be sufficient to state, in general terms, that it was given for a just consideration; but I think a general statement that it was foi* money borrowed, or for the balance due on an account, mentioning the nature of the dealings out of which the account arose, is all that is needed.
If we test this judgment by these rules, I think it is above all exception. There is, in the first place, a positive statement that the confession is for debts justly Giving and due from the defendant to the plaintiff. If any part of the amount was not really due and owing, the statement is, to that extent, untrue, and tfie oath is false. It is then averred that this indebtedness
The criticism to which the learned counsel for the respondent has subjected the paper, is too severe for the occasion; for it overlooks its legal character and the purpose for which it was required to be given. It Avas not necessary for its statements to exclude all possible circumstances which might affect the integrity of the debt, or to give all the circumstances relating to it. When the defendant swears that the note of $1,280 was given for money loaned him by the plaintiff, it means, to a common intent, that such an amount Avas loaned; and so in respect to the other note, given for money paid. And when it is said that the confession is for debts justly due and OAving by the defendant to the plaintiff, and goes on to specify the paper which he held, and the consideration of that paper, it is hypercritical to say that the indebtedness was not alleged
Upon the whole, I am of the opinion that this is one of the most satisfactory statements which have been brought before us in this class of appeals, and I am for reversing the order of the supreme court.
Under the first decisions made-in this court, where a question similar to that involved in this case was decided, there may have been some doubt as to the sufficiency of the statement on which this judgment was entered. I refer to Chappel v. Chappel, 12 N. Y. 215, and those immediately following. But since the cases of Freligh v. Brink, 22 N. Y. 418, and Neusbaum v. Keim, 24 Id. 325, a more liberal rule has prevailed. Within those cases I think this statement is sufficient. The cause of action is twofold. First, on a promissory note, giving amount and date, “ being for money loaned me by plaintiff to commence business as a merchantand, second, on a promissory note, “ being for money paid by plaintiff for me on the real estate I now own at Irving.” The objection to these statements is that they do not state the amount loaned or paid, the terms of the loan, and the time when made, and, in the latter case, the name of the person to whom paid, and whether one or more sums.
I think such particularity is not called for by the statute. The statement declares the note to be given for money loaned. The presumption is that it was one sum loaned, and that it is due. The terms of the loan are not required to be stated to give it validity. Hor are the names of the persons to whom the payment was made, necessary. Bor is it necessary for the debtor to negative the loan being made to more than one person. The presumption is that it was made to one only. Unless something to the contrary appears, that is sufficient. _
The order setting aside the judgment should be reversed.
was for reversal, for the reasons assigned, in his
opinion in Clements v. Gerow.*
Orders of general and special term, reversed, with costs.
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Reported in this series.
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Reported in this series.