| N.Y. App. Div. | Jun 17, 1940
The facts are undisputed. On November 2, 1938, defendant Armin H. Mittlemann duly executed a confession of judgment in favor of the plamtiffs-appellants Florence Bernard Williams and Armin H. Mittlemann, as executors and trustees under the last will and testament of Sam Bernard, deceased, for $30,000 and interest. The consideration therefor was an unpaid loan for $30,000 made in 1924 by the testator to Mittlemann. On January 18, 1939, those plaintiffs caused the confession of judgment to be entered and filed in the office of the clerk of the county of Queens. Judgment was on that day duly entered thereon for principal, interest and costs in the sum of $30,410.75. Mittlemann was not a resident of Queens county on November 2, 1938. He then resided in Nassau county and had been resident there since July 8, 1938.
On November 2, 1938, respondent Thomas J. Shaw was the holder of a confession of judgment, also executed by Armin H. Mittlemann. On April 17, 1939, the same was filed by him in the office of the clerk of Queens county, and judgment duly entered thereon in the sum of $26,848.04. The statement of that confession and such judgment likewise were not filed and entered in the county of Mittlemann’s residence as of the date of that confession.
Respondent Bernard Weiss was the holder of a judgment against Armin H. Mittlemann, duly recovered on June 6, 1939, in the Supreme Court of New York, county of New York, not upon confession, in the sum of $34,102.80.
Respondent Thomas Keogh, on January 18, 1939, when the judgment first mentioned in favor of the plamtiffs-appellants, executors and trustees, was thus entered against Mittlemann, held $3,525 belonging to that judgment debtor. On that day, pursuant to their judgment, the judgment creditors (executors and trustees) therein caused to be served upon Keogh a third-party subpoena. In disregard of the injunction contained therein, Keogh paid to respondent Shaw $2,525 of the amount thus held by him, and the remaining $1,000 thereof to respondent Weiss. At the instance of the plaintiffs-appellants, executors and trustees, proceedings were duly had in the Supreme Court, County of New York, looking to the punishment of respondent Keogh for contempt of court for his disobedience of the injunction. These culminated in a decision by Justice Collins on December 20, 1939, directing that Keogh be punished for contempt and fined $3,525. The entry of an order on that decision has been withheld pending our determination of this appeal. Armin H. Mittlemann was adjudicated a bankrupt September 1, 1939.
The determination of the learned Special Term was correct. The judgment under attack is void. Concededly it was entered on confession of the defendant Mittlemann, the statement of which was filed on January 18, 1939, in the office of the clerk of Queens county, which county was not the residence of Mittlemann on November 2, 1938, when the statement was made. (Civ. Prac. Act, § 543.) That section reads: “ § 543. Entry of judgment on filing statement. At any time within three years after the statement is verified, it may be filed with the county clerk of the county of which the defendant was a resident at the time of making such statement. Thereupon the clerk must enter, in like manner as a judgment is entered in an action, a judgment for the sum confessed, with costs, which he must tax, to the amount of fifteen dollars, besides disbursements taxable in an action. The judgment must be entered in the Supreme Court. A judgment shall not be entered upon such a statement after the defendant’s death.” Properly construed, the word “ may ” therein, which on its face is permissive, is in law mandatory under circumstances to which reference is made infra. (Glaser v. Brand, 253 A.D. 711" court="N.Y. App. Div." date_filed="1937-12-17" href="https://app.midpage.ai/document/william-f-wholey-co-v-lauzon-5352688?utm_source=webapp" opinion_id="5352688">253 App. Div. 711 [see opinion of Rosenman, J., at Special Term, N. Y. L. J. June 11, 1937, p. 2947]; leave to appeal denied, 253 A.D. 797" court="N.Y. App. Div." date_filed="1938-01-14" href="https://app.midpage.ai/document/barnard-v-barnard-5353053?utm_source=webapp" opinion_id="5353053">253 App. Div. 797; 277 N. Y. 737.) Judgments by confession are governed entirely by sections 540 to 545 of the Civil Practice Act; and strict conformity
The judgment of plaintiffs-appellants is vulnerable to the motion by respondent Weiss to vacate the same; and is void as to judgments validly entered.
The appellants urge that their judgment should be permitted to stand as one entered validly by default. It is true that a summons (only) was served by the executors and trustees upon the defendant Mittlemann shortly before the statement of the confession of judgment was executed by him. The judgment, however, is plainly one based upon that confession and not by default for failure of the appearance of the defendant in the action in which the summons was served upon him, service of which summons was waived by plaintiffs-appellants when they entered judgment upon the confession.
The order appealed from should be affirmed, with ten dollars costs and disbursements to the respondent Weiss only.
Lazansky, P. J., Hagaety, Carswell and Adel, JJ., concur.
Order granting, among other things, motions of Thomas J. Shaw and the intervenor Bernard Weiss to vacate a judgment in favor of Florence Bernard Williams and Armin H. Mittlemann, as executors and trustees under the last will and testament of Sam Bernard, deceased, affirmed, with ten dollars costs and disbursements to the respondent Weiss.