17 N.Y.S. 221 | N.Y. Sup. Ct. | 1891
This is an appeal from a. judgment on report of a referee in proceedings to establish a claim against the estate of a decedent. The plaintiff’s claim is based upon what is claimed to be a judgment in the common pleas of Bradford county, Pa., in favor of plaintiff’s assignor, Joseph Trebilcox, against the defendant’s testator, Rebecca Benedict. This judgment was entered, December term, 1880, on what is called a “judgment note” filed September 27,1880, dated August 31,1880, and payable five years after date. The note was signed by Rebecca Benedict and another, and was payable to Joseph Trebilcox. There was no appearance by the deceased in that proceeding, and no process was served on her. The judgment was entered as by confession; and, as appears above, it was entered some five years before the note became payable. Upon this trial the plaintiff proved the statute of Pennsylvania, which is claimed to authorize such entry of judgment. He also proved by the testimony of a counseloi of that state that under the law of the state such judgment might be entered at once, and before the maturity of the note. The judgment becomes a lien then, and may be enforced by execution after such maturity. It was also proved that at the time of the execution of the note Rebecca Benedict was a resident of Pennsylvania, .and that the note was executed and delivered in that state.
The case of Teel v. Yost, (N. Y. App.) 28 N. E. Rep. 353, involved the consideration of a judgment similar to that above described; and the whole subject of such confessions of judgment is discussed so fully that it is useless to examine the matter further as to anything there decided. That decision affirmed one reported in 8 N. Y. Supp. 552, and from an examination of the opinion in both courts the decision appears to be that such judgment eonsti
Plow, it is true, as above stated, that where a defendant has been duly served with process, and a judgment thereupon has been recovered, the kinds of fraud on which such judgment can be attacked are few. But we have already pointed out that such a limitation cannot be applicable where a judgment has been entered, as in this case, without either the appearance of the defendant