198 A.D. 769 | N.Y. App. Div. | 1921
Lead Opinion
The action is to recover oyer on a judgment entered by the plaintiff under its former name (German Exchange Bank) against the defendant on the 5th day of January, 1910, on the defendant’s appearance and formal confession of judgment.
It will be observed that the provisions of the answer which I have quoted contain a reference to some action pending at the time of the confession of judgment, but that is the only reference thereto, and we are left with only this vague information concerning it. It is difficult to understand how a confession of judgment by the defendant was to enable the bank to obtain permission from the Banking Department to cancel a claim which it had against another if, as alleged, the Banking Department required that a judgment be entered against the debtor and that execution be issued thereon and returned unsatisfied before it would allow the marking off
The learned court at Special Term was of opinion that the defense was good, on the theory that it showed that the confession of judgment was made in the execution of an agreement between the bank and the defendant to mislead the Banking Department; but we think that the defense when analyzed fails to disclose any theory on which the State banking officials could have been misled by the confession of judgment by the defendant, on a claim owing to the bank not by him but by a third party, which was not to be filed and upon which no judgment was to be entered. It follows that the order should be reversed, with ten dollars costs and disbursements, and plaintiff’s motion granted, with ten dollars costs, but with leave to defendant to amend on payment of the costs of the appeal and of the motion.
Clarke, P. J., Smith and Merrell, JJ., concur.
Concurrence Opinion
I concur in the reversal of the order appealed from and the granting of plaintiff’s motion with leave to the defendant to amend. It is difficult to understand how the defendant could have been defrauded by a promise that the confession of judgment “ would not be placed on file nor published ” (sic), doubtless meaning, would not be entered and docketed, when, as he alleges, it was represented to him by the plaintiff that the purpose of the judgment was to cause an execution to be issued thereon and returned unsatisfied. Moreover, if it be the fact that the confession of judgment was procured for the purpose of deceiving the bank examiner, then clearly the defendant must have participated in the alleged fraud and cannot be heard upon such a defense.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to serve an amended answer on payment of said' costs.