§ 1272. To what judgments and executions this ar ticle applies. This article applies only to a judg ment, wholly or partly for a sum of money, or directing the payment of a sum of money; and to an execution issued upon such a judgment, New. TITLE II. Judgments taken without process. ABFIOLA 1. Confession of judgment. 2. Submission of a controversy, upon facts admitted. ARTICLE FIRST. CONFESSION OF JUDGMENT. BRO 1273. Judgment may be confessed. When married woman may confess. 1274. Statement; form thereof. 1275. Statement to be filed, and judgment entered. 1276. Judgment-roll; docketing and enforcing the judgment. $1273. [Amended, 1877.] Judgment may be confessed. When married woman may confess. -- A judgment by confession may be entered, without action, either for money due or to become due, or to secure a person against contingent liability in behalf of the defendant, or both, as prescribed in this article.(1) A mar ried woman may confess such a judgment, if the debt was contracted for the benefit of her separate estate, or in the course of any trade or other business carried on by her on her sole and separate account.(2) (1) Co. Proc.. 382. Barkham v. Van Saun, 14 Abb. N. 8. 163; Bontette v. Owen, 2 Sandt. 625; Merritt v. Baker, 11 How. 456; Hill v. Nor throp, 9 id. 526; Truscott v. King, 6 N. Y. 147; Marks v. Reynolds, 11 Abb. 403; Averill v. Loucks, 6 Barb, 19; Stoughtenburgh . Vandenburgh. How. 229; Von Keller r. Muller, 3 Abb. 375. note: Graser v. Stellwa ren, 25 N. Y. 315; Gere v. Supervisors of Cayuga, 7 How. 255; Mallory. Clark, 20 id. 418; 8. c., 9 Abb. 358; Leahey v. Kingon, 22 How. 209; &. c., 13 Abb. 192: Lambert v. Converse, 22 How. 265; Person v. Warren, 14 Barb. 488; Ireland v. Smith, 1 id. 419: Manuf. Bank v. St. Johns, 5 Hill 497; Manuf. Bank v. Boyd, 3 Deuto, 257; Bonnell v. Henry, 13 How. 142. (2) New. See First Nat. Bank of Canandaigua v. Garlinghouse, 53 Barb. $15; s. c., 36 How. 369; Watkins v. Abrahams, 24 N. Y. 72. § 1274. Statement; form thereof. A written statement must be made, and signed(1) by the defendant, to the following effect: 1. It must state the sum, for which judgment may be entered, and authorize the entry of judgment therefor. 2. If the judgment to be confessed is for money due or to become due, it must state concisely the facts, out of which the debt arose; and must show, that the sum confessed therefor is justly due, or to become due. 3. If the judgment to be confessed is for the purpose of securing the plaintiff, against a contingent liability, it must state concisely the facts, constituting the liability; and must show, that the sum confessed therefor does not exceed the amount of the liability. The statement must be verified by the oath of the defendant, to the effect, that the matters of fact therein set forth are true.(2) Co. Proc.. 383, am'd. Cook v. Whipple, 55 N. Y. 150; Delaware v. Ensign, 21 Barb. 85; Lanning v. Carpenter, 20 N. Y. 448; Freligh v. Brink, 22 d. 418; Hopkins v. Nelson, 24 id. 518; Neusbaum v. Keim, id. 325; Dow v. Platner, 16 id. 563; Thompson v. Van Vechten, 27 id. 568; Ely v. Cooke, 23 id. 365; Frost v. Koon, 30 id. 428; Kirby v. Fitzgerald, 31 id 417; Kellogg v. Cowing, 33 1d. 408; Read v. French, 28 1d. 285; Johnston v. McAusland, 9 Abb. 214; Marks v. Reynolds, 12 1d. 403; Lyon v. Sherman, 14 1d. 393; Winnebrenner v. Edgerton, 8 id. 419; 17 How. 363; 80 Barb. 185; McKee v. Tyson, 10 Abb. 395; Curtis v. Corbitt, 25 How. 88: Manchester v. Preston, 14 id. 21; Mott v. Davis, 15 id. 67; Park v. Church, 5 d. 381; Gandall v. Finn, 33 id, 444; 1 Keyes, 217; Acker v. Acker, id. 291; Ciements v. Gerow, id. 297; Rathbone ". Stocking, 1 Barb. 135 (1) Purdy v. Upton, 10 How. 494; Post v. Coleman, 9 id. 64 Mosher. Heydrick, 45 Barb. 459. (2) Ingram v. Robbins 33 N. Y. 409; Delaware v. Ensign, 21 Barb. 82; Mosher v. Heydrich, 1 Abb. N. S. 258; 45 Barb. 459; 30 How. 101; Post v. Coleman, 9 id. 64. $1275. [Amended, 1895.] Statement to be filed, and judgment entered.- At any time within three years after the statement is verified, it may be filed with a county clerk, or, where the sum, for which judgment is confessed, does not exceed two thousand dollars, exclusive of interest from the time of making the statement, with the clerk of the city court of the city of New-York. Thereupon the clerk must enter, in like manner as a judgment is entered in an action, a judg ment for the sum confessed, with costs, which he must tax, to the amount of fifteen dollars, besides disbursements taxable in an action. If the statement is filed with a county clerk, the judgment must be entered in the supreme court; if it is filed with the clerk of another court, specified in this section, the judgment must be entered in the court of which he is clerk. But a judgment shall not be entered upon such a statement, after the defendant's death. In effect Jan. 1, 1896; L. 1895, ch. 946. Co. Proc., 384, first sentence, am'd. Mosher v. Heydrick, 45 Barb 549; 8. c., 1 Abb. N. S. 258; and 30 How. 101; Blydenburgh v. Northrop, 13 id. 290; Neele v. Berryhill, 4 id. 16; Daly v. Mathews, 20 id. 267; Cur tis v. Corbitt, 25 How. 58. § 1276. [Amended, 1879.] Judgment-roll; docketing and enforcing the judgment. The clerk, immediately after entering the judgment, must attach together and file the statement, as verified, and a copy of the judgment; which constitute the judgment-roll. The judgment may be docketed, and enforced against property, in the same manner, and with the same effect, as a judgment in an action, rendered in the same court; and each provision of law, relating to a judg ment in an action, and the proceedings subsequent thereto, apply to a judgment thus taken. Id., 384, second and third sentences, am'd. Biydenburgh v. Nor throp, 13 How. 290; Neele v. Berryhill, 4 id. 16; Daly v. Matthews, 20 id. 267. § 1277. Execution where the judgment is not all due. Where the debt, for which the judgment is rendered, is not all due, execution may be issued, upon the judgment, for the collection of the sum which has become due. The execution must be in the form prescribed by law, for an execution upon a judgment for the full amount recovered; but the person, whose name is subscribed to it, must indorse thereupon a direction to the sheriff, to collect only the sum due, stating the amount thereof, with interest thereon, and the costs of the judgment. Notwithstanding the issuing and col lection of such an execution, the judgment shall remain, as security for the sum or sums to become due, after the execution is issued. When a further sum becomes due, an execution may, in like manner, be issued for the collection thereof; and successive executions may be issued, as further sums become due. Id., remainder of 384. § 1278. Confession by one of several joint debtors. -One or more joint debtors may confess a judgment for a joint debt, due or to become due.(1) Where all the joint debtors do not unite in the confession, the judgment must be entered and enforced against those only who confessed it; and it is not a bar to an action against all the joint debtors, upon the same demand. New. (1) See Stoughtenburgh v. Vandenburgh, 7 How. 229; Bridesbecker v. Mason, 16 d. 203; Everson v. Gehrman, 10 id. 801; Lambert D. Oonverse, 22 id. 265. ARTICLE SECOND. SUBMISSION OF A CONTROVERSY, UPON FACTS ADMITTED, 820. 1279. Controversy, how submitted without process. cess. 1280. Papers to be flied; controversy thereupon becomes an action. 1281. Subsequent proceedings regulated. § 1279. Controversy, how submitted without proThe parties to a question in difference, which might be the subject of an action, being of full age,(1) may agree upon a case, containing a statement of the facts, upon which the controversy depends; and may present a written submission thereof to a court of record, which would have jurisdiction of an action, brought for the same cause. The case must be accompanied with the affidavit of one of the parties, to the effect, that the controversy is real; and that the submission is made in good faith, for the purpose of determining the rights of the parties. The submission must be acknowledged or proved, and certified, in like manner as a deed, to be recorded in the county where it is filed. Co. Proc., part of 372, am'd. Clark v. Wise, 46 N. Y. 612; Wood 0. Squires, 60 id. 191; Fearing v. Irwin, 55 id. 486; Union Bauk v. Kapper, 63 1d. 617; Lang v. Ropke, 1 Duer, 702: Van Stekie v. Van Sickle, 8 flow. 265; Neilson v. Com. Mut. Ins. Co., 3 Duer, 455; id. 683. (1) Fisher v. Stilson, 9 Abb. 33; Lathers v. Fish, 4 Lans. 213. § 1280. Papers to be filed; controversy thereupon becomes an action. The case, submission, and affidavit, must be filed in the office of the clerk of the court, to which the submission is made.(1) If the submission is made to the supreme court, they must be filed in the office of the county clerk, if any, specified in the submission; if no county clerk is so specified, they may be fled in the office of any county clerk. The filing is a presentation of the submission; and thenceforth the controversy becomes an action; and each provision of law, relating to a proceeding in an action, applies to the subsequent proceedings therein except as otherwise prescribed in the next section. (1) New. Beinander is substituted for Co. Proc., 374, and part of 372 and 373. § 1281. [Amended, 1895.] Subsequent proceedings regulated. An order of arrest, an injunction, or a warrant of attachment, cannot be granted in such an action; the costs thereof are always in the discretion of the court, but costs cannot be taxed, for any proceedings before notice of trial; the action must be tried by the court, upon the case alone; and the case, submission, affidavit, and a certified copy of the judgment, and of any order or paper, necessarily affecting the judgment, constitute the judgment-roll. If the action is in the supreme court it must be tried and judgment rendered by the appellate division thereof, and if in the city court of the city of New-York, it must be tried, and judgment rendered, at the general term thereof. If the statement of facts, contained in the case, is not sufficient to enable the court to render judgment, an order must be made dismissing the submission, without costs to either party; unless the court permits the parties, or, in a proper case, their representatives, to file an additional statement, which it may do, in its discretion, without prejudice to the original statement. In effect Jan. 1, 1896; L. 1895, ch. 946. TITLE III. Vacating or setting aside a judgment, for irregularity or error in fact. . 1282. Motion to set aside judgment for irregularity; when it may be heard. 1283. Motion to set aside Judgment for error in fact; when it may be made by party. 1284. Id.; after a party's death 1235. Id.; by a person not a party. 1286. Id.; when several parties are entitled to move. 1287. To whom notice of the motion must be given. 1288. Id.; when real property recovered by the judgment has been conveyed. 1930. How notice given under this title. |