136 Misc. 752 | N.Y. Sup. Ct. | 1930
This motion for summary judgment is based upon a judgment by confession contained in a bond executed in Pennsylvania. The latter incorporated a printed warrant or power of attorney authorizing any attorney to confess judgment against the defendant. Thereafter a judgment was entered against the defendant under that warrant in the courts of Pennsylvania, upon an appearance on the part of a firm of attorneys presumably designated by the plaintiff under authority of the power of attorney, and without personal service upon the defendant. Under the laws of Pennsylvania, such a confession of judgment is perfectly valid, and the only question is whether it is effective here against a
In Scanlon v. Kuehn (225 App. Div. 256) the court refused to enter a judgment in which the power to confess had been granted by one member of the copartnership, holding that, in an action against the other copartner, the power to confess was unavailable. This decision was arrived at, notwithstanding the fact that, under the laws of Pennsylvania, such a power granted bound the partner who had not joined. The court implied that, if the defendant against whom the judgment had been entered had been a resident of the State in which such a judgment was sanctioned, it would have extraterritorial effect, and an action upon such a judgment would be effective. We note in the Scanlon case an attempt to distinguish the case of Teel v. Yost, and possibly to imply that, unless the person against whom the confession by power of attorney was obtained, was a resident of the State at the time, the courts of our State would not recognize it as a judgment obtained in personam.
In Mayer v. Raudenbush (217 N. Y. 633) a Pennsylvania judgment entered upon confession by power of attorney was recognized as valid in New York, the court affirming the Appellate Division (154 App. Div. 937) in a memorandum decision based upon a citation of Teel v. Yost (supra) as authority. The record on appeal in that case does not reveal whether the defendant was a resident of Pennsylvania or of New York, the question of residence at the time of judgment not being mentioned either in the pleadings or in the evidence.
If the defendant were a resident of Pennsylvania, or had been one at the time of the execution of the power of attorney, I should not hesitate to grant the relief asked for. There are, however, certain observations in Starck Piano Co. v. O’Keefe (211 App. Div. 700), which make it doubtful whether plaintiff is entitled to relief. In that case Mr. Justice Dowling, now presiding justice, condemned as illegal the method of entering a confession of judg
After quoting the foregoing, Mr. Justice Dowling continues: “ The present case demonstrates how salutary are the provisions in question of the Civil Practice Act and its predecessors in the Code of Civil Procedure. Here is a judgment by confession, entered ostensibly by the attorney for the defendants, though he is in fact the attorney for the plaintiff. His verification of the statement for judgment is based on the original agreement, and on conversations and communications with the agents of the plaintiff. But he does not claim to have ever conferred with the defendants, or to have had any conversations or communications with them, or to have obtained their version of the transaction.” The Appellate Division accordingly ruled that the court was without jurisdiction to enter a judgment under such circumstances.
While it is true that the preceding case did not involve a foreign judgment and the force to be given to it, I nevertheless hesitate to consider that judgment conclusive upon one of our residents,
The motion for summary judgment is, therefore, denied.