| N.Y. Sup. Ct. | Aug 15, 1855
To authorize the entry of a judgment by. confession, without action, a written statement is required, in which the facts out of which the indebtedness arose must be set forth. It is settled, that it is not a sufficient compliance with this requirement to set out a promissory note, executed by the party against whom the judgment is to be entered. Such a note may furnish evidence of the existence of a debt, but it furnishes no information in relation to the facts out of which the indebtedness arose. (Chappel agt. Chappel, 2 Kern. 215.) In this case, the statement upon which the judgment was entered contains merely a copy of a note, executed simultaneously with the statement itself. The requirement of the statute cannot be so easily satisfied. Such a statement furnished no authority for entering judgment.
Nor is the omission to state the facts out of which the indebtedness arose a mere irregularity. If it were, it would have been a sufficient answer to the motion, that more than a year had elapsed since the judgment was entered. (2 R. S. 359, § 2.) Indeed, if it were a mere irregularity, none'but the defendant in the judgment could take advantage of it.
In Chappel agt. Chappel, above cited, it was held that, because the omission to state the facts out of which the indebtedness arose was not a mere irregularity, but a matter of substance, affecting the interests of subsequent incumbrancers, a third person, having a lien upon property junior to the' apparent lien of such a judgment, might move to set it aside, and thus remove the obstruction which the parties to the judgment had illegally placed in the way of the collection of his debt. Had the omission been regarded as mere informality in the proceedings, the court could not have allowed a stranger to the record to interfere. But as the objection went to the validity of the judgment itself, a party interested in enforcing a subsequent judgment was allowed to come in and have it set aside. If this be so, the statute which requires that a motion to set aside, a judgment for irregularity should be made within a year after the entry of judgment, has no application to the case. (See Manufacturers’ and Mechanics' Bank agt. Boyd, 3 Denio, 257" court="N.Y. Sup. Ct." date_filed="1846-09-15" href="https://app.midpage.ai/document/manufacturers--mechanics-bank-of-the-northern-liberties-of-the-county-of-philadelphia-v-boyd-5465302?utm_source=webapp" opinion_id="5465302">3 Denio, 257;
It was insisted, in opposition to the motion, that, as the judgment assigned by Lahens to Mr. Genet, was recovered upon a bond, secured by a mortgage upon the only real estate owned by the defendant, the judgment was not a lien upon such real estate; and the assignee had, therefore, no interest in removing the prior judgment entered by confession. It is true, that the mortgaged premises cannot be sold by virtue of an execution upon the judgment. (2 R. S. 368, § 31.) But, though this be so, the owner of the judgment is not the less interested in removing any illegal obstruction which the judgment in favor of the plaintiff may present to the collection of his debt by a foreclosure of his mortgage. Nor do I understand that the right to have the illegal judgment removed is confined to a judgment-creditor. It is unnecessary, however, to determine this question, for it is not denied that the judgment recovered by Mr. Genet on the 19th of April, 1855, is a lien upon the defendant’s real estate, and this alone would be sufficient to authorize the motion.
It is stated, in the affidavit of the plaintiff’s attorney, that, in January, 1855, a motion was made by Mr. Genet, on behalf of his assignor, to set aside the same judgment, and that such motion was denied, without liberty to renew the same. It is insisted, therefore, that the subject of this motion is res adjudicata. But a conclusive answer to this objection is, that though Mr. Genet may not be at liberty to renew the motion as the assignee of the judgment recovered by Lahens, he is under no such disability in respect to the judgment recovered by him since the former motion was made.
The judgment must be set aside, unless, within ten days after being served with a copy of the order to be entered upon this decision, the plaintiff shall execute and deliver to Mr.