send, 3 Abb. 375; Daly v. Mathews, 20 How. 267; S. C. 12 Abb. 403 (n.), sub nom. Daly v. Matthews. A statement alleging that the judgment is for cash loaned the defendant, and paid for his use and at his request, and interest thereon, stating various sums or items with sufficient particularity as to time, and making up the sum for which judgment is confessed, but not stating which items or sums were loaned to the defendant, and which were paid for his use, and not distinguishing at all between the sums loaned to the defendant and the sums paid for his use, nor stating to whom any item or sum was paid for the use of defendant, is insufficient. McDowell v. Daniels, 38 Barb. 143. d. Judgment and bond.-"The indebtedness arose on a judgment in the supreme court, in favor of B. against K., and assigned to plaintiff; and also on a bond executed by K. to B., dated the 22d day of May, 1838, for the sum of $2,000, both of which securities were given for money borrowed by the defendant, and the sum confessed is justly due to the plaintiff, without any fraud whatever." Beekman v. Kirk, 15 How. 228. e. Statement sufficient in part. Where the statement in a judgment by confession is sufficient in part, and insufficient as to the residue, such judgment may be sustained to the extent of the sufficient statement, and set aside as to the residue. Frost v. Koon, 3 N. Y. (3 Tiff.), 428; Hoppock v. Donaldson, 12 How. 141; Marks v. Reynolds, 12 Abb. 403; Rev'g S. C. 20 How. 338. f. Sufficient as between the parties. A statement for judgment by confession may be sufficient as between the parties to the judgment, when it would be insufficient as to creditors. Von Kellar v. Muller, 3 Abb. 375 (n.); Ely v. Cook, 2 Hilt. 406; S. C. 9 Abb. 366; S. C. modified, 28 N. Y. (1 Tiff.), 365, 368, sub nom. Ely v. Cooke. See, also, Purdy v. Upton, 10 How. 497; Miller v. Earle, 24 N. Y. (10_Smith), 110; Neusbaum v. Keim, id. 325; Rev'g S. C. 7 Abb. 23; Read v. French, 28 N. Y. (1 Tiff.), 285; Kirby v. Fitzgerald, 31 N. Y. (4 Tiff.), 417. g. Statement may be amended.Where the good faith of the indebtedness is not questioned, and no superior equities exist in favor of other creditors, an amendment of an insufficient statement in a judgment by confession may be permitted, in order to preserve the lien and priority of the judgment. Davis v. Morris, 21 Barb. 152; Johnston v. Fellerman, 13 How. 21; Union Bank v. Bush, 36 Ñ. Y. (9 Tiff.), 631; S. C. 3 Trans. App. 235; Hammond v. Bush, 8 Abb. 152. See, also, McKee v. Tyson, 10 Abb. 392; McDowell v. Daniels, 38 Barb. 143. The power of the court below to amend in such cases is a matter of discretion, the exercise of which is not reviewable in the court of appeals. Mitchell v. Van Buren, 27 N. Y. (13 Smith), 300; Union Bank v. Bush, 36 N. Y. (9 Tiff.), 631; S. C. 3 Trans. App. 235; Rev'g S. C. 8 Abb. 152, sub nom. Hammond v. Bush. h. Verification.-Where the matter to which the oath relates is within the personal knowledge of the party, a direct and positive affirmation that the statement is true is necessary. Ingram v. Robbins, 33 N. Y. (6 Tiff.), 409. Simply swearing that he "believes the above statement of confession is true" is insufficient. Ingram v. Robbins, 33 N. Y. (6 Tiff.), 409. But see Delaware v. Ensign, 21 Barb. 85. A statement in the affidavit "that the facts stated in the above confession are true" is a sufficient verification. Mosher v. Heydrick, 30 How. 161; S. C. 45 Barb. 549; 1 Abb. N. S. 258, sub nom. Mosher v. Heydrich. It seems the verification may be made before the plaintiff's attorney. Post v. Coleman, 9 How. 64. i. Signature.-Where the affidavit and written statement are upon the same page, and the signature of the defendant is to the affidavit only, it is a substantial compliance with this section. Purdy v. Upton, 10 How. 494; Post v. Coleman, 9 id. 64; Mosher v. Heydrick, 30 How. 161; S. C. 45 Barb. 459; 1 Abb. N. S. 258, sub nom. Mosher v. Heydrich. j. Entry of judgment.-There is nothing in the Code or other provision of law requiring the judgment to be entered at any particular time after the confession and statement are made. Curtis v. Corbitt, 25 How. 58. Judgment may be entered with the county clerk of any county, and not merely in the county where the statement authorizing it was verified. Mosher v. Heydrick, 30 How. 161; S. C. 45 Barb. 459; 1 Abb. N. S. 258, sub nom. Mosher v. Heydrich. k. Presumption.—A judgment confessed to several persons to secure an actual indebtedness, is presumed to be in favor of all the plaintiffs equally, but such presumption is liable to be rebutted. Rathbone v. Stocking, 2 Barb. 135. III. SETTING ASIDE JUDGMENT. a. On motion of junior judgment creditor. A judgment by confession may be set aside for a defect in the statement upon which it is entered upon the application of a junior judgment creditor. Chappel v. Chappel, 12 N. Y. (2 Kern.), 215; Rae v. Lawser, 18 How. 23; S. C. 9 Abb. 380 (n.); Bonnell v. Henry, 13 How. 142. b. Or on motion of a subsequent bona fide purchaser of real estate, against which the judgment is an apparent lien. Kendall v. Hodgkins, 1 Bosw. 659; S. C. 7 Abb. 309. c. Or in an action in the nature of a creditor's bill at the suit of a subsequent judgment creditor. Dunham v. Waterman, 17 N. Y. (3 Smith), 9; 6 Abb. 357. d. Not limited to judgment creditors. - The right to set aside or attack a judgment entered by confession upon a defective statement is not limited to judgment creditors, but may be attacked by a grantee or mortgagee of premises upon which such judgment is a lien. Norris v. Denton, 30 Barb. 117. And see Daly v. Mathews, 20 How. 267; S. C. 12 Abb. 403 (n.), sub nom. Daly v. Matthews. e.. But not on motion of an assignee for the benefit of creditors. ·Beekman Kirk, 15 How. 228. V. f. Or a creditor at large.-Lowber v. Mayor, etc. of New York, 15 How. 123; Beekman v. Kirk, id. 231. See, also, Miller v. Earle, 24 N. Y. (10 Smith), 110. g. Or a person claiming to be a judgment creditor under a subsequent judgment by confession, entered on a defective statement. Rae v. Lawser, 18 How. 23; S. C. 9 Abb. 380 (n.) h. A judgment confessed directly to a third party, who takes it in good faith, and for value, cannot be impeached for fraud existing between the defendant and the original creditor. Kirby v. Fitzgerald, 31 N. Y. (4 Tiff.), 417. i. Cannot be impeached collaterally.-A judgment by confession, although voidable, cannot be impeached collaterally. Sheldon v. Stryker, 34 Barb, 116; S. C. 21 How. 329. j. Irregularity.-A motion to set aside a judgment by confession for defect in statement, is not founded upon an irregularity, so as to require the moving party to specify in his moving papers the grounds of the motion. Winnebenner v. Edgerton, 30 Barb. 185; S. C 17 How. 363, sub nom. Winebrenner v. Edgerton; S. C. 8 Abb. 419. k. Burden of proof.-The ordinary rule, that the party asking for relief must make out his case by a preponderance of proof, is applicable to a motion to set aside a judgment by confession. Williams v. Hernon, 33 How. 241; S. C. 3 Keyes, 99. 1. Compelling an amended statement. The court has the power, in any case, to compel the defendant, in a judgment entered upon an insufficient statement, to sign and verify an amended statement in the same manner that it may relieve against any other default or slip in the practice. Union Bank v. Bush, 36 N. Y. (9 Tiff.), 631; S. C. 3 Trans. App. 235; Rev'g S. C. 8 Abb. 152, sub nom. Hammond v. Bush. § 384. [337.] (Am'd 1849, 1851.) Filing same, and entering judgment. The statement may be filed with a county clerk, or with a clerk of the superior court of the city of New York, who shall indorse upon it and enter in the judgment book a judgment of the supreme or said superior court, for the amount confessed, with five dollars costs, together with disbursements. The statement and affidavit, with the judgment indorsed, shall thenceforth become the judgment roll. Executions may be issued and enforced thereon, in the same manner as upon judgments in other cases in such courts. When the debt for which the judgment is recovered is not all due, or is payable in installments, and the installments are not all due, the execution may issue upon such judgment for the collection of such installments as have become due, and shall be in the usual form, but shall have indorsed thereon, by the attorney or person issuing the same, a direction to the sheriff to collect the amount due on such judgment, with interest and costs, which amount shall be stated, with interest thereon, and the costs of said judgment. Notwithstanding the issue and collection of such execution, the judgment shall remain as security for the installments thereafter to become due; and whenever any further installments become due, execution may in like manner be issued for the collection and enforcement of the same. a. Entry of judgment.-The judg ment may be entered with the county clerk of any county, and not merely in the county where the statement authorizing it was verified. Mosher v. Heydrick, 30 How. 161;| S. C. 45 Barb. 549; S. C. 1 Abb. N. S. 258, sub nom. Mosher v. Heydrich. b. Amending entry of judgment.Where, on filing and docketing a judgment by confession, the clerk omits to make the requisite indorsement on the statement, it may be done nunc pro tunc by an order of the court. Daly v. Mathews, 20 How. 267; S. C 12 Abb. 403 (n.), sub nom. Daly v. Matthews; Neele v. Berryhill, 4 How. 16; Talcott v. Rosenberg, 8 Abb. N. S. 287, 292. See, also, as to amendment of statement, notes to preceding section. c. Perfecting judgment.-Until the judgment is entered by the clerk, there is no lien and no judgment, and nothing of the existence of which notice can be given to effect subsequent incumbrancers or grantees. Bly denburgh v. Northrop, 13 How. 289. CHAPTER IV. Offers of the defendant to compromise the whole or a part of the action. SECTION 385. 386. 387. § 385. [338.] (Am'd 1851, 1866.) Defendant may offer to compromise, and the proceedings thereon. The defendant may, at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken against him for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer, and give notice thereof in writing, within ten days, he may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the plaintiff fail to obtain a more favorable judgment he cannot recover costs, but must pay the defendant's costs from the time of the offer; and in case the defendant shall set up a counterclaim in his answer to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's recovery below fifty dollars, then the plaintiff may serve upon the defendant an offer in writing to allow judgment to be taken against him for the amount specified, or to allow said counterclaim to the amount specified, with costs. If the defendant accept the offer, and give notice thereof in writing, within ten days, he may enter judgment as above for the amount specified, if the offer entitle him to judgment, or the amount specified in said offer shall be allowed him in the trial of the action. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the defendant fail to recover a more favorable judgment or to establish his counterclaim for a greater amount than is specified in said offer, he cannot recover costs, but must pay the plaintiff's costs from the time of the offer. admission of the plaintiff's cause of action to the extent of the payment, and is a payment pro tanto. Spalding v. Vandercook, 2 Wend. 431; Johnston v. Columbian Insurance Co. 7 Johns. 315; Murray v. Bethune, 1 Wend. 191. And the plaintiff, in any event, is entitled to the amount so paid. Slack v. Brown, 13 id. 390. And the defendant must pay the costs to the time of payment, if the amount paid is sufficient to carry costs. Aikins v. Colton, 3 id. 326. The defendant is entitled to a verdict and costs where the plaintiff does not prove a cause of action for more than the sum paid into court. Dakin v Dunning, 7 Hill, 30; Logue v. Gilleck, 1 E. D. Smith, 398. But even in that case the defendant cannot compel restitution of the excess. Read v. Mutual Safety Insurance Co. 3 Sandf. 54. If the plaintiff proves a cause of action for more than the sum paid into court, he is entitled to a verdict and judgment for the whole amount proven, but must give credit on the execution for the amount previously paid into court. Dakin v. Dunning, 7 Hill, 30. Money can only be paid into court upon an order to that effect. Baker v. Hunt, 1 Wend. 103. A bond conditioned for the payment of money by installments is not within the statutes (2 R. S. 353, § 12) permitting a defendant to discontinue an action, on bringing the amount due into court, with costs. People ex rel. Dey v. New York Superior Court, 19 Wend. 104. d. Offer may be made, in what cases. The offer of judgment, under this section, is not confined to actions upon contract, nor to actions against a sole defendant, but may be made in all actions. Bridenbecker v. Mason, 16 How. 203. See, also, Keese v. Wyman, 8 id. 88; Hill v. Northrup, 9 id. 525; Marble v. Lewis, 53 Barb. 432; S. C. 36 How. 337. But the court may set it aside, if made to avoid the provisions of § 382. Ross v. Bridge, 15 Abb. 150; S. C. 24 How. 163. e. By whom to be made.-An offer to allow judgment, signed by the defendant's attorney, is equivalent to an offer signed by the defendant himself. Sterne v. Bentley, 3 How. 331; S. C. 1 Code R. 109. Where the defendant has appeared by attorney, the offer should be made and subscribed by the attorney; but if, in such a case, the offer is made by the defendant in person, leave of the court should be obtained to enter judgment upon it. Webb v. Dill, 18 Abb. 264. f. Requisites of offer.-The offer should be so distinctly made, that there can be no doubt or misunderstanding about it. Post v. New York Central Railroad Co. 12 How. 552. And will be of no avail unless it expressly states that judgment for the sum offered may be taken, with costs. Ranney v. Russell, 3 Duer, 689. There must be no condition attached to it, and nothing left to be ascertained or determined before the entry of judgment. Pinckney v. Childs, 7 Bosw. 660; S. C. 15 Abb. 137 (n.), sub nom. Pinkney v. Childs; Hanna v. Dexter, 15 Abb. 136. For insufficient offer in foreclosure. Bettis v. Goodwill, 32 How. 137. And for insufficient offer in an action to recover dower, see Marble v. Lewis, 36 How, 337; S. C. 53 Barb. 432. The offer may be for the full sum demanded in the plaintiff's summons and complaint. Ross v. Bridge, 24 How. 163; S. Č. 15 Abb. 150. Or it may be for the difference between the amount claimed in the complaint and a set-off or counterclaim set up in the answer, where such balance is susceptible of being ascertained by computation. Burnett v. Westfull, 15 How. 420; S. C. Aff'd, id. 425 (n. 2.) In an action on a joint and several obligation, against several defendants, the plaintiff is not bound, at the peril of being subjected to costs, to accept an offer of judgment from a part of the defendants only. Griffiths v. De Forest, 25 How. 336; S. C. 16 Abb. 292. g. When made.-It seems, that an offer may be made before service of the complaint, and any amendment the plaintiff may see fit to make, cannot deprive the defendant of his offer, if the plaintiff fails to recover a more favorable judgment than that offered. Kilts v. Seeber, 10 How. 270. The offer should be served in time to give the plaintiff ten days before the trial to elect whether he will accept it or proceed to trial. If it is served so late that the cause is reached and tried before the expiration of the ten days, the offer will not be available. Pomeroy v. Hulin, 7 How. 161; Walker v. Johnson, 8 id. 240. h. Joint debtors.-In an action against several defendants, on a joint demand, a defendant served with process may bind his codefendants who are not served, by an offer of judgment, and if the plaintiff accept such offer, he may enter judgment against all the defendants, as joint debtors, and enforce it against the joint property of all, and the separate property of the defendant who made the offer. Emery v. Emery, 9 How. 130; La Forge v. Chilson, 3 Sandf. 752; S. C. 1 Code R. N. S. 159. And where, in such an action, some of the defendants make no defense, and the rest serve an offer, the plaintiff will be subject to costs if he proceeds and fails to recover more than the amount offered. La Forge v. Chilson, supra. But in Blodgett v. Conklin, 9 How. 442, where two defendants were regularly served with summons, and one of them without the authority of the other authorized an attorney to appear for both, who served an offer which the plaintiff accepted, and took judgment, the other defendant was permitted to come in and defend; the judgment, in the meantime, being allowed to stand as security. See, also, Yates v. Horanson, 7 Rob. 12. i. Partners.- One partner cannot, contrary to the known wishes and against the explicit objections of his co-partner, make an offer of judgment in favor of a partnership creditor, in the name of the firm, which will bind his co-partner or the partnership property. Everson v. Gehrman, 10 How. 301; S. C. 1 Abb. 167; Binney v. Le Gal, 19 Barb. 592; S. C. 1 Abb. 283. But where an attorney appears for both, and there is no contrivance in employing him to appear, his appearance on the record may make the judgment regular. Binney v. Le Gal, 19 Barb. supra; Bridenbecker v. Mason, 16 How. 203. In Olwell v. McLaughlin, 10 N. Y. Leg. Obs. 316, however, the court refused to set aside a judgment entered upon the offer of one partner of a firm in failing circumstances, in favor of a bona fide partnership creditor, on motion of the other member of the firm, who was not | due, with interest and costs. Howard v. Farcognizant of, nor consented to the proceeding. ley, 29 How. 4; S. C. 18 Abb. 367. See, also, Bettis v. Goodwill, 32 How. 137. j. More favorable judgment.—The judgment recovered is not "more favorable" when the sum offered, with interest to the date of the judgment, exceeds the amount recovered, in which case the defendant is entitled to costs. Tilman v. Keane, 1 Abb. N. S. 23. In determining whether a judgment is more favorable to the plaintiff, he is entitled to the benefit of any counterclaims which the defendant may interpose subsequent to the offer, and which are extinguished by the judgment. Tompkins v. Ives, 36 N. Y. (9 Tiff.), 75; S. C. 1 Trans. App. 266; 3 Abb. N. S. 267; Turner v. Honsinger, 31 How. 66; Tompkins v. Ives, 30 How. 13; S. C. Aff'd, 36 N. Y. (9 Tiff.), 75; 1 Trans. App. 266; 3 Abb. N. S. 267; Ruggles v. Fogg, 7 How. 324; Fieldings v. Mills, 2 Bosw. 489. And see Schneider v. Jacobi, 1 Duer, 694; S. C. 11 N. Y. Leg. Obs. 220; Kilts v. Seeber, 10 How. 270; Budd v. Jackson, 26 How. 398. In an action on a bond secured by mortgage to recover the penalty by reason of default in the payment of interest, a judgment for the interest due is more favorable to the plaintiff than an offer of the whole amount secured by the bond and mortgage, not yet ❘ k. Costs.-Where, in an action upon contract, at issue and noticed for trial, the plaintiff accepts the offer of the defendant to allow judgment against him for an amount less than fifty dollars, the defendant is entitled to costs. Johnson v. Sagar, 10 How. 552. Where the plaintiff fails to obtain a more favorable judgment than the offer made by the defendant, he is not entitled to costs, whether disbursements or otherwise, after the offer made by the defendant, but is entitled to the costs up to the time the offer was made. The defendant, in such a case, is entitled to costs from the time of his offer. Burnett v. Westfall, 15 How. 430. See, also, Keese v. Wyman, 8 How. 88. 1. Amendment by plaintiff. - An amendment of his pleadings by the plaintiff, after the offer, will not deprive the defendant of the benefit of his offer, if the plaintiff fails to recover a more favorable judgment. Kilts v. Seeber, 10 How. 270. m. The direction of a judge is not necessary to the entry of judgment. Hill v. Northrop, 9 How. 525; Yates v. Horanson, 7 Rob. 12. § 386. [339.] Defendant may offer to liquidate damages conditionally. In an action arising on contract, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that if he fail in his defense, the damages be assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, with or before the notice of trial, and on the trial have a verdict, the damages shall be assessed accordingly. § 387. [340.] Effect of acceptance or refusal of offer. If the plaintiff do not accept the offer, he shall prove his damages as if it had not been made, and shall not be permitted to give it in evidence. And if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses, incurred in consequence of any necessary preparation or defense in respect to the question of damages. Such expense shall be ascertained at the trial. a. Acceptance. The mere acceptance of an offer is not obtaining judgment. Lippman v. Petersbergher, 9 Abb. 209; S. C. 18 How. 270. b. Non-acceptance. - By a failure to | accept an offer, the plaintiff does not prejudice his right to recover the amount admitted by the answer to be due. Dusenberry v. Woodward, 1 Abb. 443. See, also Smith v. Olssen, 4 Sandf. 711. |