Gandal v. Finn

13 How. Pr. 418 | N.Y. Sup. Ct. | 1856

Rosekrans, J.

Gandal, the plaintiff in the first above entitled cause, is a judgment and execution creditor of the defendant Finn, and moves to set aside the judgments in the other two causes, rendered by confession under section 383 of the code, on the ground that the statements upon which said judgments were rendered do not comply with the requirements of the second subdivision of that section. The judgments sought to be set aside were both entered up on the 14th of December, 1855, upon confessions dated on that day. The statement in the case of Mann & Kendrick, under this subdivision, is as follows : “The above indebtedness arose on account, for goods, wares and merchandise, and property sold and delivered to me by the plaintiff, for which I have not paid, and the sum above confessed is justly due to the plaintiffs, without any fraud whatever.” In the case of Lockwood, the statement under this subdivision is as follows: “ The above indebtedness arose on account, for goods, wares and merchandise sold and delivered by said plaintiff to me, since the first day of January, 1855, and the sum above confessed is justly due to the said plaintiff, without any fraud whatever.”

The second subdivision of section 383 requires, in substance, that the verified statements of the defendant, upon which the judgment is to be entered, if the judgment is for money due or to become due, must state concisely the facts out of which the indebtedness arose. The object of this requirement is precisely the same as that of the statute of 1818 in regard to confessions of judgment, and that was to point other creditors of the defendant to the precise transaction or transactions’ out of which the confessed indebtedness arose, to enable them to inquire into its truth, and to confine the defendant and the creditor to -whom the judgment should' be confessed, to the particular matter set forth as the foundation of the judgment, in case its good faith should be attacked. The statute of 1818, it is true, required a greater particularity and a more definite specification than section 383 of the code. The former required “ a particular statement and specification of the nature and consideration of the debt,” and the latter, “ a concise statement, of the facts out of which the debt arose.” It was held that the statement and specifications under the act of 1818 should be “ as special and precise as a bill of particulars, and if the consideration of the judgment was for goods sold, the specification was required to state the kind, quantity and price of the goods and the time of sale, as in a bill of particulars.” (Lawless v. Hackett, 16 John. 149. Brinkerhoff v. Marvin, 5 John. Ch. R. 320, 325, 326.)

The statement, under the code, need not be so particular, specific or precise. It may be concise and comprehensive ; but still it must state the facts out of which the indebtedness arose, upon which the judgment is confessed. If it is to be of any service to the creditors of the judgment debtor, or answer any of the purposes for which it is required, it should, in those cases where the indebtedness is for property sold, state when the property was sold, the general nature of the property, and the time of credit, the price or aggregate of the purchase, and the amount of payments, if any. Unless this is done, the transaction is not identified with or distinguishable from others of a similar character, nor are the words “ it must concisely state the facts out of which it arose,” satisfied. This language imports' that the particular transaction out of which the indebtedness arose, shall be specified and identified in the statement.

Had the legislature intended that the statement should only set forth generally the nature and consideration of the debt, they would have employed different language from that used in the second subdivision of section 383. In the language of Dean, J., in Chappel v. Chappel, (2 Kern. 221,) “the intention of the requirement was to compel the person confessing a judgment to disclose what was the real consideration of the judgment confessed, and to show to all interested the transaction out of which the debt originated.”

In the view'which I have taken of the section of the code under consideration, the judgment in favor of Mann, Kendrick & Mann is void as against the plaintiff Grandal. The statement does not set forth what kind of goods, wares and merchandise sold, constituted a part of the indebtedness ; nor how much in value, nor how much of the indebtedness arose out of the sale of other property ; nor of what kind the latter consisted; nor where the sale was made. It points to no particular transaction to which other creditors can direct their inquiries, and so far as relates to effecting the objects intended to be attained by the section of the code referred to, it might as well have been entirely omitted.

The statement in the case of Lockwood is not quite so defective as the one in the case of Mann and others, inasmuch as it states that the consideration of the indebtedness was only for goods, wares and merchandise sold and delivered, and states the time of sale to have been between the 1st of January and 14th of December, 1855, and creditors seeking to investigate the good faith of the Lockwood judgment would only have to grope their way through the entire range of property coming within the description of goods, wares and merchandise, and through a period of eleven months and a half, while in reference to the Mann judgment these inquiries would necessarily be extended to all kinds of property which could be the subject of sale, and through all time.

I do not, however, consider the statement upon which the Lockwood judgment was entered sufficient to answer the purpose of the statute. The statute is remedial, and should receive such a construction as will satisfy the purpose intended to be effected by it. I think the only difference between the requirements of the statute of 1818 and those of section 383 of the code is that under the latter the judgment debtor is relieved from the minuteness and particularity of detail required under the former.

In cases where the consideration of the indebtedness is property sold, the code does not require the bill of particulars necessary to have been given under the statute of 1818 ; but the nature of the property should be set forth, with other particulars of distinction than the general statement that it was real or personal property: and the time of the transaction should be specifically stated.

The plaintiffs in the second judgment sought to be set aside were merchants in the city of Troy, and sold goods and other property to the defendant, who was a merchant at Fort Edward. There is no hardship in requiring them, in ease they take a confession of judgment for these demands, to state that on a certain day, specifying it, the plaintiff sold to the defendant, a country merchant, a bill of dry goods for the supply of the store of the defendant, amounting to $100, or $500, or any other sum, stating it truly, upon a credit of six months, upon which the defendant, on a day specified, paid an amount specified, and to repeat the sales and payments in the same manner as often as they have occurred. This would be nothing more than a “concise statement of facts out of which the indebtedness aroseand this statement would show that 'the sum for which the judgment was confessed was already due or to become due. A less degree of conciseness than this would defeat the purposes of the act and render it comparatively a dead letter. The motion to set aside the judgments of Mann and others, and of Lockwood, against Finn, should be granted, with ten dollars costs.

[Saratoga Special Term, September 16, 1856.

Rosekrans, Justice.]