47 N.Y.S. 113 | N.Y. App. Div. | 1897
This is an appeal by John H. Robinson, a judgment creditor, subsequent to the judgment of the plaintiff, from an order denying his motion to set aside, the judgment obtained by the plaintiff on the confession of the defendant.
The statement on which said judgment was entered recites the facts out of which the debt arose as follows: “ This confession of judgment is for a debt and" liability justly due to the said plaintiff, arising upon the following facts, viz.: being for a balance due for goods, wares and merchandise sold and delivered to me, Fred. C. Greene, by the plaintiff, William W. Blackmer, and remaining unpaid and unsecured.”
This statement, we thinly is insufficient to meet the requirements of section 1274 of the Code of Civil Procedure, under doctrines established in Wood v. Mitchell (117 N. Y. 439). In that case the statement on which the judgment was obtained was as follows: “ The said sum of $5,000' is a balance due to said plaintiff of various sums of money loaned and advanced by him to me, the said defendant, during a period from July 1, 1886, to date, and includes interest upon such loans and advances to this date.” It was held to be too indefinite and deficient to meet the requirements of the Code of Civil Procedure, and that the denial of a motion on the part of a subsequent judgment creditor to set aside the judgment was error. The statement in the case cited sets out the facts out of which the debt arose as fully and definitely .as the "one under consideration ; and, under the doctrine established by the Court of Appeals in Wood v. Mitchell (supra), it is impossible to hold the statement under consideration sufficient.
■ -■ As against the appellant, we are of opinion that it would not be proper to. allow an amendment of the statement on which the judgment was granted. (See Bradley v. Glass, 20 App. Div. 200.)
The order should be reversed, with costs and disbursements, and the motion to set aside the judgment granted, with ten-dollars costs;
All concurred.
Order reversed, with ten dollars, costs and disbursements, and motion to set aside judgment granted, with ten dollars costs.' -