Kantrowitz v. Kulla

McAdam, Ch. J.

An offer to allow judgment under section 738 of the Code is hut a substitute for the former cognovit by which a defendant who had no defense, gave to the plaintiff a written confession of the action (Graham's Pr. 2d ed. 781). Assuming, therefore, that the offer provided for by section 738 is practically a written confession by the defendant making it, there is no reason why judgment may not be entered against the one making it, without barring the action against the other joint debtor who did not (Coda Civ. Pro. § 1278). Prior to the enactment of this section, a judgment against one joint debtor operated to merge the debt in the higher security of the judgment, which was regarded as a bar to any action against the other joint debtors, and this whether the judgment was recovered by action or upon confession (Candee v. Smith, 93 N. Y. 349). Section 1278 was designed to change this technical rule of the common law, by permitting one of several joint debtors to confess a judgment without impairing the legal remedies of the creditor against the others who do not join in the confession.

This section (1278), in our judgment, was passed with reference not only to section 1273, which provides for judgments by confession “without action55 but to section 738, which authorizes a form of judgment by confession “ after action55 through the medium of a cognovit or offer.' There is certainly no cogent reason why the new rule introduced by section 1278 should be limited in its-application to “confessions,” technically so called, or why it should not be held to embrace “ confessions ” made through the medium of a cognovit or offer to allow judgment. They are all confessions of judgment authorized by the Code, serve the same purpose, and differ only in name and form. There is no magical force in the name of a thing, for the law looks to substance, not form. It regards the thing and not the name by which it is called. The new provision is remedial in its nature, and should be liberally construed to give it efficiency, according to it evident spirit and intent! Effect must be given to the purpose of a statute though the construction seem contrary to the strict letter of the act (Jackson v. Collins, 3 Cow. 89; White v. Wager, 32 Barb. 250; Rice v. Mead, 22 How. Pr. 445); for a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter (People v. Utica Ins. Co., 15 Johns. 358, 380).

Properly interpreted, section 1278 of the Code applies to the case at bar, and by force of its provisions the' judgment entered against the one joint debtor upon his offer of judgment, did not merge the debt or bar the remedy of the creditor against the other debtor not included in the offer and judgment. It follows therefore that the order vacating the attachment as to the partnership property of both debtors, and as to the separate, interest of the one not included in the offer and judgment, must be reversed, with costs.