
    E. S. Jaffray et al., App’lts, v. Josephine M. Saussman, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 24, 1889.)
    
    Execution—Upon confessed judgment—Code Civ. Peo., § 1377—To WHAT SUBSEQUENT JUDGMENT CEEDITOES CAN OBJECT.
    Where an execution has been issued under section 1377 of the Code of Civil Procedure, but has been indorsed, in disregard of the section, with a direction to the sheriff to collect more than the amount actually due, it is competent for a subsequent judgment creditor in a direct proceeding for that purpose, as by motion, to attack the execution as for invalidity, so far as it directs the sheriff to collect anything in excess of the sum presently due on the prior judgment.
    Appeal by plaintiffs from an order amending an execution.
    
      Isaac L. Miller, for app’lts; A. Blumenstiel, for resp’t.
   Bartlett, J.

The defendant confessed judgment in favor of the plaintiffs for $2,094.58 on the 14th day of May, 1888. Of this amount, only the sum of $637.58 was due at that date. The balance did not become due before the 6th day of July, 1888. The plaintiffs’ attorneys, however, on the day the judgment was confessed, issued an execution, directing the sheriff to levy and collect the whole amount of the judgment. Subsequently, on the same day, the respondents, constituting the firm of Freedman Brothers, obtained a judgment also by confession, against the defendant for $2,802.22, all of which was presently payable, and duly issued an execution thereon. They found their process preceded, however, by the execution which had been issued upon the confessed judgment in favor of the plaintiffs. The sheriff levied upon certain personal property belonging to the defendant, and sold the same under and by virtue of both executions; and thereupon a motion was made in behalf of Freedman Brothers, the subsequent execution creditors, who are the respondents on this appeal, to set aside the execution in favor of the plaintiffs, so far as it affected their own execution.

This motion was not granted in the form in which it was made, but the court, at special term, ordered an amendment of the plaintiffs’ execution, so as to permit the sheriff to collect thereon only the sum actually due to the plaintiffs at the time the judgment ivas confessed, together with costs. The moving parties, Freedman Brothers, appear to be satisfied with this order, but the plaintiffs have appealed.

As the questions presented by the appeal are of considerable practical importance, it may be well to quote in full section 1277 of the Code of Civil Procedure, under which they arise. That section is contained in the article entitled “Confession of Judgment,” and provides as follows :

“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 collection 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.”

The execution issued upon the confessed judgment in favor of the appellants did not conform to the requirements of this section. The statement showed that only a portion of the sum for which the judgment was confessed was then due, but the indorsement on the execution directed the sheriff to collect the whole amount. If the defendant had objected to the execution, by reason of the erroneous direction thus indorsed thereon, it is conceded that she would have been entitled to have it amended, upon making a proper motion for that purpose; but the appellants contend that subsequent execution creditors have no standing in court to insist upon a reduction of the execution to the proper amount, and that none but the defendant can assert the right to have it reduced.

On the contrary, I think that where an execution has been issued under section 1277 of the Code of Civil Procedure, but has been indorsed, in disregard of the provisions of that section, with a direction to the ..sheriff to collect more than the amount actually due, it is competent for a subsequent execution creditor, in a direct proceeding for that purpose, as by motion, to attack the execution for invalidity so far as it directs the sheriff to collect anything in excess of the sum presently due on the prior judgment.

The personal property of the debtor does not become subject to the lien of either judgment until the issue' of execution; and the subsequent execution creditor has a direct and manifest interest in preventing a prior execution creditor from acquiring a lien on the personal property which is larger than the law allows, and which is likely to impair or defeat his own lien, as may well be the case where the estate is not sufficient to satisfy the claims of both creditors. Under such circumstances, the subsequent execution creditor is plainly injured by the excess in the amount of the prior execution, and is affected by the error in such a manner as to give him the right to have it corrected.

The provision of the Code which permits a judgment to be confessed for money, to become due at a future date (Code Civ. Pro., § 1273), constitutes an exception to the general rule that only such claims as are past or presently due can be put into judgment; and the rights of the creditor, to whom a judgment is confessed for money not yet due, should not be extended by construction. Referring to that part of section 1277, which provides that in a case where the whole amount of a confessed judgment is not due and execution is issued, in the first instance only for a portion thereof, the judgment shall remain as security for the sum or sums becoming due after the execution is issued,” the appellants argue that this provision makes the judgment a hen upon the personal property of the defendant in the meantime, as well as upon his real estate. I do not think so. The plain meaning seems to be that the judgment shall be security to just the same extent as any other judgment for a like amount would be, upon which no execution had yet been issued. There is nothing in the language of the section which requires any other construction or appears to warrant it. The Code says that the judgment shall remain as security; not the judgment and execution.

If the* contention of the plaintiffs is correct, that the privilege of objecting to an excessive execution, under section 1277, is confined to the debtor who confesses the judgment, a curious result might follow. If the debtor chose to acquiesce in the form of the execution0, he could allow his property to be sold thereunder and applied to the pay- ■ ment of a claim, nine-tenths of which might not be due for a year to come; and, in consequence of this proceeding, a subsequent judgment creditor, whose judgment had been recovered the same day upon a claim presently payable, might find his execution returned nulla bona, because the goods of the defendant had been taken to satisfy-a debt not yet due.

In Mr. Freeman’s treatise on the law of executions, is a note referring to numerous cases, in which courts have disregarded variances between the amount of the judgment and the amount mentioned in the execution. Freeman on Executions, § 43. In none of these cases, all of which have been examined, is it held that the objection that the amount of an execution is excessive, can be taken only by the defendant. Most of them uphold the doctrine that an execution which calls for too much money, is not void, but merely voidable. Peck v. Tiffany, 2 N. Y., 451, 458; Hunt v. Loucks, 38 Cal., 372. In the latter case, speaking of such an execution, the supreme court of California holds that it cannot be attacked collaterally by anybody, or even, directly by a stranger. But, as already intimated, a subsequent execution creditor is not to be regarded as a stranger in interest. The appellants invoke the rule, which is laid down so often in the books in various forms, to the effect that none but the defendant can take advantage of a defect in an execution which is amendable. Abels v. Westervelt, 15 Abb. Pr., 230; Wright v. Nostrand, 94 N. Y., 31, 47.

But the facts of the cases in which this rule has been .applied must not be overlooked. No instance of its applition as against a subsequent execution creditor, where the amount of the prior execution was too large, has fallen under my notice. The rule has been held to be applicable in suits against sheriffs for an escape or a false return, where the fact that the execution was voidable has been pronounced unavailable as a defense. Bissell v. Kip, 8 Johns., 89, 99; Bacom v. Cropsey, 7 N. Y., 195. It has also frequently been declared that the objection that an execution was issued sooner than the statute prescribed, or without proper proceedings to revive "the judgment, could be taken only by the defendant. Kimball v. Munger, 2 Hill, 364; Pierce v. Alsop, 3 Barb. Ch., 184, 190, 196. In the cases cited to this effect, however, no question arose as to the debt being actually due, which was represented by the judgment and execution. The decisions merely affirmed the right of a debtor to waive a delay which he might have insisted on under the statute, and to waive it, irrespective of the wishes of third persons. But what the judgment debtor has done in the case at bar is something very different from merely waiving a statutory delay in the collection of a demand conceded to be due. By acquiescing in the form of the execution which the appellants have issued, she has consented to apply her personal property to the liquidation of claims in behalf of the appellants, which will become due at a future time, to the exclusion or impairment of a claim in behalf of the respondents, which is due already. I do not think the provisions of the Code in relation to confessions of judgment were designed to be employed by debtors for such a purpose ; and in the case at bar, its accomplishment was properly prevented, at the instance of the parties who were directly liable to injury therefrom, by granting their motion to the extent of reducing the execution to the amount actually due on the appellants’ judgment, at the time it was issued.

The order appealed from should be affirmed, with costs and disbursements.

Yan Brunt, Ch. J., and Daniels, J., concur.  