
    Ambrose W. Adams, as Constable, Resp’t, v. John H. Tator App’lt.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    1. Justice’s court — Confession of judgment.
    A judgment on confession for a contingent liability is not authorized ii justices’ courts.
    3. Same.
    A confession of judgment stated no facts or cause of action, but it appeared that the indebtedness included three notes on which plaintiff was surety for defendant, and which were not yet due, but plaintiff agreed to pay them. Held, that defendant was not indebted to plaintiff in the amount of such notes, and that the judgment entered upon such confession could not be sustained.
    Appeal from judgment in favor of plaintiff entered upon verdict for $698.05, and from order denying a new trial.
    
      Wm. O. Lamont and N. 0. Moak, for appl’t; Hobart Krum, for esp’t.
   Learned, P. J.

This is an action to recover damages for taking )ersonal property. The plaintiff recovered and defendant appeals. Dhe plaintiff was in possession of the property by virtue of exentions issued on two judgments recovered by one Mickle against >ne King on confession March 10, 1885, before a justice of the )eace; one for $500; the other for $200. The defendant took the noperty by virtue of a chattel mortgage, executed to him by ling December 30, 1884, and not filed until March 14, 1885. )n the first trial it was urged that plaintiff was not a constable, [fiat point was disposed of when the case was here before, 42 Tun, 384; 6 M. Y. State Rep., 359, and will not be again considired. The principal questions now are as to the validity of the udgments, and the regularity of the executions. It is urged that he confessions of judgment were in fact fraudulent; and also hat the justice had no authority to take a confession of judgment ;iven, in fact, to secure contingent liabilities. In form the conessions authorize a judgment, but they state no facts of any :injl, and show no cause of action. It is further claimed by the lefendant that the affidavit attached to each confession is defectve. On the trial it appeared that the alleged indebtedness for rhich these judgments were confessed was made up as follows:

1. A joint and several note made by King and Mickle, dated )etober 30, 1884, for $400, at one year, held by a bank at Midlleburgh when the confession was given. As between the paries Mickle was surety for King, who received the avails.

2. A promissory note made by King and Mickle, dated March 4, 1884, for $49 and interest, at one year, held by George D. Irayman, on which Mickle was in fact surety.

3. A promissory note made by King and Mickle, dated March .3, 1884, for $68.40 and interest, at ten months, held by Mrs. bland, on which, also, Mickle was in fact surety.

4. An indebtedness on book account of about $64.37, and periaps borrowed money $130.

There is evidence to the effect that just before the confessions Tickle and King looked over their affairs, and that there were found labilities to over $700, including these notes; that they agreed o call the amount $700 ; that Mickle agreed to pay the notes if ling would give the security, and that on this arrangement the udgments were confessed.

It is evident that the notes above mentioned formed the prinipal part of the indebtedness for which the judgments were con;ssed. The learned justice who tried the case expressed some oubt on the question of the confession of these judgments for a contingent liability, but decided to hold the judgments good in that respect.

Section 2864 gives a justice of the peace jurisdiction to enter confession of judgments as prescribed in title 6 of chapter 19.

Sections 3010, 3011 prescribe the mode, and are substantially like the provisions of the Revised Statutes. The third subdivision of the latter section requires that, when the judgment exceeds fifty dollars, there must be an affidavit of the parties, “stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein over and above all just demands which the defendant has against the plaintiff.” The argument of the defendant is that King was not indebted to Mickle at the time of the confession upon the notes; nor even upon Mickle’s agreement to pay them, though he might become so indebted when Mickle paid. It is worthy of notice in considering this question that in regard to confessions in courts of record the Code is precise and clear. It gives express authority to confess for a contingent liability and requires a verified statement of the facts constituting such liability. Sections 1273, 1274; see Flour City National Bank v. Doty, 41 Hun, 76; 2 N. Y. State Rep., 336. And some inference may be drawn therefrom that, if confessions of judgment in justice’s court were authorized for contingent liability, a similar provision would have been made for a statement of facts.

In the present case the confession states no facts whatever. It does not show for what cause of action the judgment is to be entered ; whether for assault and battery, for damages in taking a chattel, for money loaned, for goods sold. It only authorizes a judgment for a certain amount on no cause of action whatever. We have doubts whether such is the proceeding authorized by the Code. A “confession” means ordinarily the acknowledgment of some facts; and it is reasonable that facts should be stated, at least as fully as would be done in a complaint in the same court. This might be quite important in order to show the nature of the execution to be issued. Section 3026.

But passing this, we come to the question as to the contingent liability. It is certain that at the time of the entry of the judgments King was indebted on the notes, not to. Mickle, but to the holders. A principal is not indebted to the surety until the surety has paid the debt. Even though Mickle, in consideration of the giving these judgments, had agreed to pay the debt, still it could not be said that King was indebted to Mickle for these notes at the time when the judgments were given. Whether Mickle would pay them or.not was uncertain. If he paid them King would owe him; if he did not, King would not owe him. All was contingent. This is not saying that it would not be a lawful arrangement for King to secure Mickle on receiving such a promise. We are only examining whether the language required in the affidavit, viz. : that the defendant is justly and honestly indebted to plaintiff in the sum specified, can be construed to comprehend such an arrangement. Mickle was already liable on these notes.. He assumed no new obligation. He simply obtained a judgment against King before paying the rotes, which he would have been able to recover after paying them. Only after he had paid them King would have become indebted to him; before, King was not. When, then, the Code requires such an affidavit, it shows that there must be an existing iebt to the plaintiff. Probably the debt need not be yet payable. For that case a stay of execution is provided. Sec. 3010. But the defendant must owe the plaintiff. Debitum in praesenti solvendum in futuro. Debt existed in the present case, but not to his plaintiff, that is, as to the three notes. Smith v. Krauskopf, 13 Hun, 526, and cases cited.

But the plaintiff insists that by the effect of the agreement Detween Mickle and King just prior to the confessions, $700 was lue and owing by King to Mickle without any contingency. Very probably the agreement, based on the promise by King to ¡onfess judgment, might have been valid. But the agreement vas nothing more than making Mickle the principal debtor and Sling surety on the notes as between themselves ; and it could not De said that King was indebted to Mickle in that amount over md above all just demands.

The plaintiff urges that judgment may ne - confessed for a tort, md that a tort is not a debt. That may be true. But when the Darties have settled and agreed on the damages which are to be Daid in compensation- for a tort, it might not be a forced contraction to say, in such an affidavit, that the defendant was inlebted in that amount. Whether, however, a case of tort is vithin these sections we need not decide.

It is true that in this case Mickle did subsequently pay these totes. But we think that the learned justice correctly held that uch payment was immaterial as to the point now considered.

In confessions of judgment in courts of record there is a special irovision for the issue of execution when the debt is not all due; he word “ due ” there meaning payable. Section 1277. See Haffray v. Saussman, 52 Hun, 561; 23 N. Y. State Rep., 823, and National Park Bank v. Salomon, 23 id., 566. In § 3026 it is proided that executions on justices’ judgments must specify the sum ecovered and the sum actually due. How whatever the meanig of the word “ due ” in this section, as the executions were ssued the same day with the judgments, it is plain that, as to the mount of the notes, nothing was due, in either meaning. And íe executions, in fact, did not state that any amount was due; a efect which may be a mere irregularity.

We think then that the absence of any special provision for the atry of judgments on confession in justices’ courts for continent liabilities, with the requirement of the affidavit above reared, shows that no such confessions were contemplated by the iatute. There is reason for this, because proceedings in justices’ Durts are simple and adapted to plain cases. And it would seem range, if judgments on contingent debts had been contemplated, íat provisions similar to those of § 1274 were not added.

The plaintiff urges that the judgments are good at least to the stent not given to secure the notes. We do not see how, in retid to these justices’ judgments, we can hold this.

There is a slight variation in the form of affidavits from that required by the Code, § 3011, subd. 3. The affidavits follow the language of 2 Revised Statutes, m. p. 245, § 114, subd. 3. We do not think the variation is fatal.

We think, therefore, that these judgments on confession cannot be sustained, and that the judgment and order appealed from must be reversed and a new trial granted, costs to abide event Landon, J., concurs.  