Claflin v. Sanger , 17 How. Pr. 574 ( 1859 )

Ingraham, J.

The objection to this statement is, that it does not state the facts out of which the indebtedness arose, In all the cases it is conceded that the object of the statute was to compel the debtor to disclose so much of the transaction out of which the indebtedness arose, as to enable the creditor to form a more accurate opinion as to the integ^ rity of the debtor in confessing the judgment, and for this purpose to compel the parties to spread on the record a particular and specific statement of the facts out of which the imdebtedness arose. (Chappel v. Chappel, 2 Kernan, 215.)

The precise question as presented in this case appears to have been passed upon by the general term in this district, in Moody v. Townsend, (3 Abb. 375.) Roosevelt, J. in that case says: “ A general allegation that the judgment was for goods sold and delivered,” is not a compliance with the requirements of the statute.

In Freligh v. Brink et al. (16 How. Pr. Rep. 272,) Brown, J. held that a statement which averred the indebtedness to have arisen on a note for $700, that amount of money being had by the defendant of the plaintiff, and which was due, was insufficient. In Stebbins v. The Meth. Episcopal Church, (12 How. Pr. Rep. 410,) Smith, J. held that a statement of indebtedness for money lent and advanced by the plaintiff to the defendant, and which had been used to pay his debts, was insufficient, because it did not state when the money was lent, in what sums, and at what times.

In Lockwood v. Finn, (13 How. Pr. Rep. 418,) Rosekrans, J. held that a statement that the indebtedness for goods, wares and merchandise sold and delivered by the plaintiff to the defendant, since a specified date, was insufficient, because it did not set forth what kind of goods, &c. were sold, nor how much, nor at what time. That it did not point to any particular transaction to which other creditors could direct their inquiries.

In Beekman v. Kirk, (15 How. Pr. Rep. 228,) Harris, J. held that a statement of indebtedness in a judgment recovered on a bond given for money borrowed by the defendant was defective, for want of disclosing the amount of the loan, or when the judgment was recovered. (See also 17 N. Y. Rep. 9.)

There are many other cases which might be cited of a similar character; but the above are amply sufficient to shów that the views entertained by the judges in these cases, when applied to the present case, would condemn the statement as insufficient and defective. I will only add one more by the general term of this district. In Davis v. Morris, (21 Barb. 152,) Mitchell, P. J. held a statement of indebtedness for money lent and advanced at divers times by the plaintiff to the defendant, from 1853 to date, was insufficient.

These decisions, two of which are by the general term of this district, are controlling upon this question, notwithstanding there are some few cases of a contrary tenor by the judges at special term in other districts, such as Post v. Coleman, (9 How. Pr. Rep. 64.)

[At Chambers, August 22, 1859.

The plaintiffs in this action were not the original creditors by whom the goods were sold, and it was suggested that less particularity was required from them than would be from the persons to whom the debt was originally due.

There is no distinction made in the statute, and there is no good reason shown for making any such distinction.

The statement is to be made by the debtor and not the creditor, and he can as well state the particulars in one case as in the other. He knows the particular transaction out of which the indebtedness arose, and he can state it as easily after the claim has been transferred to a third person, as he could be-, fore the transfer.

The motion to set aside the judgment as to the creditor making this motion must be granted.

Ingraham, Justice.]