Opinion
Argued January 18, 1897
Decided January 26, 1897
Charles F. Doyle for appellant.
Benjamin N. Cardozo for respondents.
The statement in the confession of judgment is quite similar in its effect to that which was under consideration in Broistedt v. Breslin ( 105 N.Y. 682). We there affirmed an order below, which denied a motion to set aside a judgment by confession on the ground of the insufficiency of the statement on which it was entered. The confession in that case read that it was "for a debt justly due to the plaintiff, arising upon the following facts: The defendant, at different times, borrowed of the plaintiff divers sums of money, and also purchased of the plaintiff horses, and on an accounting of their dealings together this day, there was found to be due from the defendant to the plaintiff, the sum of $2,298." The denial of the motion in the Broistedt case was rested, in the opinion of the General Term of the second department, upon the cases in this court of Freligh v. Brink ( 22 N.Y. 418) and Harrison v. Gibbons ( 71 N.Y. 58). There, as here, the statement showed an account stated between the parties and a resulting indebtedness. There was enough in either statement to comply with the statute, which requires that it shall be concise, and it is not material that there was not greater particularity or definiteness in regard to the times and amounts of the loans of money, or of the sales of merchandise upon commission. This statement satisfies the object of the statute, because it indicates the facts out of which the indebtedness arose and the form which it assumed in the account stated between the parties. The case of Wood v. Mitchell ( 117 N.Y. 439) does not conflict with the previous case of Broistedt v. Breslin, and is not an authority in conflict with the view we take of the present case. In Wood v. Mitchell the confession of judgment was "for a debt now justly due to the said plaintiff from me, arising from the following facts, viz.: The said sum of $5,000 is a balance due to said plaintiff of various sums of money loaned and advanced by him to me, the said defendant, during a period from about July 1, 1886, to date, and includes interest upon such loans and advances to this date." That statement was quite different in its effect from the one in question. Its facts were peculiar and we were quite warranted in holding that their indefiniteness vitiated the confession of judgment. The statement was vague, while the present one sets forth, similarly to a pleading, an account stated upon a certain day, and claims interest upon the sum then found to be due upon the adjustment of accounts from that day.
We think the question certified to us should be answered in the affirmative, and that the order appealed from should be affirmed, with costs.
All concur.
Order affirmed.