99 N.Y.S. 893 | N.Y. App. Div. | 1906
Section 1274 of the Code of Civil Procedure provides in subdivision 2 thereof that “ if the judgment to be confessed is for money due * * * it must state concisely the facts out of which the debt arose and must show that the sum confessed therefor is justly due * * *.” The only attack made upon this confession is that it is insufficient under this provision and is for an excessive amount.
The confession does not rest upon the statement that the indebtedness arose upon the promissory'note set out, but it goes further than that, and after stating that it arose upon such note and describing it as one given by defendants to plaintiff on the 17th day of April, 1893, for the sum of $242, it is recited that it was “ for money then due to the plaintiff from the said defendants and theretofore had by said defendants from the said plaintiff, with interest.” The case thus appears to be brought squarely within the decision in the leading case of Freligh v. Brink (22 N. Y. 418). In that case it was stated that the indebtedness arose upon a promissory note made by the defendants to the plaintiff, dated June 21,1854, in the sum of $700, with interest, “ that amount of money being had by the defendants of the plaintiff,” and. stating the amount justly due thereon at the date of the confession, and it was held that the statement was sufficient.
There appears to be no substantial difference in principle between the confession there under consideration' and the one here.
The purpose of the provision requiring the defendant in the confession to state the nature and circumstances of the indebtedness is to protect creditors from judgments fraudulently confessed (Teel
The confession was not attacked until nearly nine years after it was made. Eotliing appears to cast the slightest suspicion upon it or to show that it was not honestly made upon a bona fide obligation of the defendants to the plaintiff. - On the contrary, the number of indorsements on the note covering a period of several years goes a great way to indicate that it was a valid obligation between the parties at the time of the confession.
■ Measured by the authorities mentioned and having in view the purpose of the statute referred to, this confession, on a note given for money “then due” and “theretofore had” by the defendants from the plaintiff, appears to be sufficient.
It is further urged that the confession is excessive because the defendants authorized the plaintiff to include in it sixteen dollars and sixty-eight cents costs as a portion of their indebtedness. Under section 1275 of the Code of Civil Procedure, the defendants were liable upon the entry of the judgment by confession to the amount of fifteen dollars costs, besides disbursements taxable in an action. While it does not appear in this record that the costs and disbursements were formally taxed by the clerk, yet we may assume that as he certified the judgment, including a statement of costs and disbursements to the amount of sixteen dollars and sixty-eight cents, they were properly taxed and included therein, and the judgment should not be vacated because the defendants admitted in their confession that they were liable for this amount of costs in addition to the amount of the note and interest.
The order should be affirmed, with ten dollars costs and printing disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.
