McKee v. Tyson , 10 Abb. Pr. 392 ( 1860 )

W. W. Scrugham, J.

The question to be decided is, whether the statement upon which the judgment by confession was entered in this action, is sufficient to authorize such judgment.

Subdivision 2, of section 383 of the Code, requiring that “it it (the statement) be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due.”

The question as to the degree of particularity requisite undei this section has been frequently presented, and the opinions expressed, by the justices who have considered it, are conflicting; some of them holding that it should be as precise as that required under the act of 1818, while others have considered that no such precision is necessary.

The opinions given in the cases which have reached the Court of Appeals, strongly indicate a disposition to require a degree of particularity, almost, if not quite as great as that which was decided to be necessary under the act of 1818; but the decisions in those cases have settled no rules for the construction of these statements, excepting that it is not sufficient merely to state and set out a promissory note, executed by the defendant to the plaintiff, as the consideration of the indebtedness, or to set out and state such a promissory note, alleging that it was given on a settlement of accounts on a specified day between the debtor and the plaintiff in such judgment.

The object of the Legislature in enacting this provision, was to protect creditors against the frauds so easily perpetrated under the former system of confessing judgment by bond and warrant of attorney; and to carry this object into effect, the debtor should be required to state the facts out of which the indebtedness arose, with at least so much particularity as to enable other creditors, as is remarked in Chappell a. Chappell, “ to compare such statement with the known circumstances and relations of the debtor, and thus to form a more accurate opinion as to his integrity in confessing the judgment than was possible under the former system.”

The affidavits of both the plaintiff and defendant, read in opposition to this motion, show that the plaintiff was a storekeeper at Manhasset, in Queens county; that the defendant resided with his family near the plaintiff’s store, and was in the habit of dealing there for groceries and other articles consumed in his family. They also show that the debt upon which this judgment is founded, was a just debt, and a very full and precise bill of particulars of its items is annexed to them. They may be used to supply deficiencies in the statement upon which the judgment is founded, and to authorize its amendment, but not so as to give that judgment priority over other judgments entered before such amendment. A judgment entered upon an insufficient statement is to be deemed fraudulent and void as to the other judgment-creditors of the defendant; and it would be improper to allow an amendment to their prejudice. In the case under consideration, the statement upon which the judgment was entered was as follows :

The above indebtedness arose as follows: The sum of three hundred and ninety dollars thereof on a promissory note, dated the 1st day of May, 1856, given by me to the said plaintiff for value received, to wit, for groceries, goods, and merchandise • furnished to me before that time by the above-named plaintiff, and from his store.

The sum of twenty-four dollars and ninety-seven cents, being the amount of interest on said note to this date.

The sum of two hundred and forty-one dollars and fifty-eight cents for groceries, goods, and merchandise furnished to me since the 1st day of May, 1856 (when the said note was given), by the above-named plaintiff, and from his.store.

There is nothing in the first branch of this statement showing the period at which, or within which, the groceries, goods, and merchandise therein mentioned were furnished to the defendant, excepting only that they were furnished before the note was given; nor is there any thing in any branch or part of the whole statement, or in the known circumstances or relations of the parties, from which any inference in that respect could be drawn.

If it could be considered sufficient in other respects, I think this deficiency would be fatal to it.

The second branch of the statement depends entirely upon the first, and is open to the farther objection that the facts out of which an indebtedness for interest could arise, are not stated, and cannot be inferred from any part of the whole statement. It does not appear when the note referred to became due, or whether or not it carried interest from its date.

The third branch of the statement alleges an indebtedness of $241.58 for groceries, goods, and merchandise furnished to the defendant since the 1st of May, 1856, by the plaintiff, and from his store. The statement is dated March 31,1857, and it thereby appears that these articles were furnished between the 1st May, 1856, and 31st March, 1857. The period during which they were furnished is, I think, sufficiently expressed.

The known circumstances and relations of the parties were, that the plaintiff kept a country store at Manhasset, the defendant, with his famity, resided near that store, and was in the habit of dealing there for articles used in his family.

Taking these circumstances and relations into consideration, I think the allegation that the groceries, goods, and merchandise were furnished from the store of the plaintiff, sufficient to indicate their general nature, and to furnish, with the other allegations, and especially the statement of the.period during which the articles were furnished, indications from which the creditors of the defendant would be enabled to judge of the bonarfides of the confession with nearly as much accuracy as from a bill of particulars.

The order will be that the lien of this judgment, to the extent of $241.58, and interest thereon from April 2, 1857, and $5 costs of entering the same, have priority,' and the balance is postponed to the lien of the judgment of John H. Chapman and James A Chapman, recorded in this court, and entered in the office of the clerk of the county of Queens, on the 14th day of July, 1857, for $455.37, damages and costs. And leave is granted to the plaintiff, Thomas McKee, to amend the statement of confession upon which this judgment was entered, in accordance with the facts set forth in the affidavit of the defendant, Richard Tyson, read in opposition to this motion: such amendment, however, is not to affect the priority of any lien upon the real estate of said defendant, acquired before such amendment shall be made.

No costs of this motion are allowed to either party.