Clements v. Gerow

By the Court, Hogeboom, J.

A judgment by confession, without action, may be entered in two cases : 1. For money due or to become due. 2. To secure against a contingent liability. (Code, § 382.) To accomplish this, a statement in writing must be made, and verified by the defendant, stating, 1. The amount for which judgment may be entered, and conferring authority to do so. 2. Concisely the facts out of which the debt or liability arose. 3. Showing that the sum confessed does not exceed such debt or liability. (§ 383.) This, although not the precise language, is the substance of the provisions of the code, and is all which the law requires. Nothing else is necessary to be incorporated in the statement, and these requisites must be substantially complied with. When, therefore, the code declares that the facts constituting the debt or liability shall be concisely stated, it cannot be necessary that there should be a full or copious statement, or one embracing much detail. The form or particular ingredients of this statement are not prescribed, and they must therefore be regulated by the reason of the thing, and the object and intent of the statute. These are, I suppose, mainly if not exclusively to prevent fraud ; and to accomplish this, the statement should identify or individualize the claim, so that another claim co.uld not he substituted for it when it came to be inquired into; and should also show a claim apparently valid, with such particulars of its nature and consideration as would aid a conviction for perjury if the statement were false, and as would enable other persons interested in the matter to ascertain the facts. When these objects are reasonably answered by the statement, I think every thing is done which the statute requires, and it is improper to require more. It is true, the statute is not specific as to all the ingredients of this statement, but it is clear that it may be concise, and we must give effect to this language. It was evidently not designed to embrace much detail or formality ; and I am opposed to giving an interpretation to this statute which shall carry it beyond its fair and obvious meaning. If there be ambiguity in the statute itself, let it be corrected by the legislature, and in the mean time let statements apparently within the scope of its provisions be protected. I am of opinion that several adjudicated cases have gone too far, and exacted an unnecessary strictness of detail. I do not believe, as was held in the case of Lawless v. Hackett, (16 John. 149,) under the statute of 1818, that the statement “ ought to be as special and precise as a bill of particulars.” This would not state concisely the facts ; and although it may be true, as a general rule, that “ a statement as general as the common law counts in a declaration is not sufficient,” it is not universally so. For example, if the transaction upon which judgment was confessed consisted of a single loan of money, I do not see how the indebtedness could be more truly and appropriately stated, than to say it was “for $100 loaned by the plaintiff to the defendant on the 1st day of January, 1859.” And while I should have concurred in the conclusions at which the court of appeals arrived, as respects the validity of the judgments controverted in the cases of Chappel v. Chappel, (2 Kern. 215,) and Dunham v. Waterman, (17 N. Y. Rep. 9,) I think the course of reasoning in both of those cases tends to exact a degree of particularity and detail which, the code has not required. The present statute differs, in language, from the statute of 1818. The one required “ a particular statement and specification of the nature and consideration of the debt;” the other, a concise statement of “the facts out of which the debt arose.” And although the general object of both statutes was similar, I think the marked difference in the phraseology must have been intentional, rather than accidental or merely verbal. It is undoubtedly difficult to lay down any universal rule by which to test the validity of judgments, under the statute in question ; particularly as much latitude is allowed, under the code, in the statement of facts, even in a pleading, and we should be careful not to give so loose an interpretation to this statute as to deprive it of all real efficacy. I shall not, therefore, make the attempt. The better way is to dispose of each case as it arises, on its intrinsic merits.

To examine the judgments in question. I regard them all as defective in one important and fatal particular. They do not show that the sum for which judgment is confessed “is justly due or to become due.” In other words, as expressed in the next subdivision of the same section—which I think means the same thing—they do not show that the “ sum confessed does not exceed” the (debt or) liability. (Code, § 383.) The obvious object of this was to require such a specification as should show that the judgment was not magnified beyond the true amount of the debt or liability. In the case of Clements v. Gerow, it is first stated that judgment is confessed for $1228.50. It then adds, “ This confession of judgment is for a debt (without stating to what amount) justly due to the plaintiff arising upon the following facts : For money (without stating how much) lent and advanced by said plaintiff to me on the first day of April, 1856, and interest on the same from the first day of April, 1857.”

In the case of Ryder v. Qerow, after making confession of judgment for $321, the statement proceeds—“This confession of judgment is for a debt justly owing from me and due to the plaintiff, arising from the following facts : For money borrowed by me of him in June, 1855, for which I gave him my note, and one year’s interest thereon.”

[Albany General Term, September 5, 1859.

The same difficulty presents itself in the case of Carpenter and others v. Qerow.

None of these statements, it will be seen, specify the amount of the debt for which judgment is confessed ; nor the amount of money loaned, in the first two cases ; nor the amount of the sales, dr total price of the goods, wares and merchandise sold and delivered in the last case. Nor, do I think, is the amount to be reasonably inferred (if that were sufficient) from the language employed. Were the actual indebtedness in each case $100 or $1, instead of the amount for which judgment is confessed, I do not see but that the statement would be true, or that . the defendant could be convicted of perjury. This I regard as a vital part of a valid confession, and the omission of it, in these cases, a fatal defect. It is not to be left to inference. The statute expressly requires, in substance, that the statement shall show that the sum confessed does not exceed the amount of the debt.

It is not essential, therefore, to examine the statements in the other particulars to which.exception is taken. It is perhaps, however, not improper to remark, in illustration of'some of the positions herein assumed, that in other respects, at least as to the Clements and Eyder judgments, I regard the statements as conforming to the statute, and as sufficiently stating the facts out of which the debts arose.

The orders appealed from must, in each case, be affirmed, with $10 costs.

Wright, Gould and Hogeboom, Justices.]