Bulger v. Rosa

Parker, J.:

Section 710 of the Code of Civil Procedure provides, that when an offer of judgment is subscribed by an attorney, instead of the party, he must “ annex thereto his affidavit, to the effect that he is duly authorized to make it, in behalf of the party.” In the affidavit in question, the attorney states in effect, that he was duly authorized to make the offer in behalf of both defendants, by one of them. Now if Bulger did direct his co-defendant and co-partner to give the attorney such authorization, he was beyond doubt as duly authorized within the meaning of that section as if he had given the attorney personal authorization, and as the truth of the statement of Sherlock is not questioned it is fair to presume that he did give such authority. In any event it cannot be argued that the affidavit on its face shows a want of authority to offer judgment for Bulger. If authority was not given to the attorney by Bulger through Sherlock as stated, Bulger had a complete remedy in a motion to set aside the judgment as against him, upon the ground of irregularity. (Garrison v. Garrison, 67 How., 271.)

Either a motion or an action brought directly for the purpose, . were necessary in order to relieve him from the burden of the judgment, although authority had not been given. The general ’appearance by Tuffs, an attorney-at-law, for both defendants, con*438ferred jurisdiction upon the court, of both the subject-matter of the action and of the persons of the defendants. Jurisdiction having been thus acquired by the court before the offer of judgment was made, the offer, no matter how defective, would not render the judgment wholly void. It would merely constitute an irregularity voidable on disclaimer and motion by the defendant erroneously affected; or if the irregularity was the result of a mistake, the court in the interests of justice, could by order permit a proper affidavit to be supplied, and the judgment made regular in form.

The defect complained of being one of regularity of procedure, and not of ' jurisdiction, the judgments cannot be attacked collaterally. (White v. Bogart, 73 N. Y., 256.) This the defendant was permitted, erroneously, to do on the trial in the court below.

The respondent urges that the defendant having failed to prove any facts making the judgments admissible against the plaintiff, they were immaterial and irrelevant, and the judgment should not, therefore be reversed, even though this court should hold that the court below erred in holding that the judgments were void. We cannot indorse that position. The first evidence offered upon the part of the defendant consisted of the judgment-rolls. The court held that the judgments were void, and excluded the judgment-rolls and the executions issued thereon.

The defendant having justified under the judgments and executions, and they having been excluded, it was of no avail for him thereafter to attempt to show that the judgment-debtors had a leviable interest in the property in controversy; and he was not called upon to prove the facts necessary to show that, had the judgment-rolls and executions been admitted, they would have been material.

The case having been tried and disposed of in the court below upon the theory that the judgments were wholly void, the case must be decided upon appeal on the same theory. (Paige v. Fazackerby, 36 Barb., 392, 395, 401, and cases cited.)

Judgment reversed and new trial granted, costs to abide the event.

Landon and Fish, JJ., concurred.

Judgment reversed, new trial granted, costs to abide event.