
    Dwight v. St. John.
    Upon an application to" the court, by motion, to cancel a judgment entered' upon confession without action as having been paid, the court may order a reference to ascertain the facts.
    The order of the court denying such motion, made upon full proofs, and appealable as affecting a substantial right, is conclusive between the parties.
    After such an order, the plaintiff in the judgment brought an action for the purpose of having the judgment declared to stand as security for another debt not mentioned in the sworn statement upon which it was entered, and to have such statement amended in accordance with the intent and agreement of the parties as alleged by him, but denied upon oath by the defendant: Held, that while the defendant was concluded by the adjudication upon the motion, in effect that the judgment should stand as security for such further debt, yet the plaintiff could have no affirmative relief
    
      Appeal from the Supreme Court. The action was brought by Dwight, the plaintiff in .two judgments entered upon confession without action under § 382 of the Code of Procedure. The statements upon which the judgments were respectively entered, declared that one of them was to secure the payment of a promissory note for $7,000, the other, another note for $8,000, both made by the defendant. The complaint in this action averred that it was agreed and intended at the time of the confession of the judgments that they should .stand as security not only for the promissory notes mentioned, but also for an indebtedness of the defendant to the plaintiff arising from the purchase by the former of the steamer Empire on which $30,000 remained due, secured by chattel mortgage of the vessel. The relief prayed was that the j udgments might be declared to have had that effect from their rendition, and to have been and continue valid liens on the defendant’s lands for such Empire debt, as the plaintiff denominated it, and that the defendant should be required to make and cause to be recorded such confessions, acknowledgments and other instruments, as the court should deem necessary to give effect to his alleged agreement, or that the original entries should be so amended as to give effect to the alleged intention and agreement of the parties. It was admitted that the promissory notes had been paid. The answer which was under oath fully denied the case made by the complaint, and alleged that the statements fully expressed the purposes for which the judgments were respectively entered.
    Upon the trial the plaintiff gave in evidence the papers upon a motion made by the defendant in the Supreme Court to have the judgments canceled and discharged of record, as satisfied. Upon the motion being made, the court directed a reference to inquire and report as to the facts set up by the parties which were substantially the same as those averred by them respectively in their pleadings in this action. Upon the coming in of the referee’s report the court denied the motion to satisfy and discharge the judgments, or either of them. The papers given in evidence included the affidavits made for and against the motion, the referee’s report, with the evidence, oral and documentary, taken by him, and the orders of the court. The plaintiff insisted that the whole subject matter of the action was res adjudicata and rested his case. The defendant moved to dismiss the complaint for want of proof. The judge before whom the cause was tried found as facts upon this evidence, that the agreement set up in the complaint was not proved: that neither of the judgments was entered upon any other agreement or consideration than those set forth in the statements on which they were entered; and that both of the judgments had been paid and satisfied. The judge held, as matter of law, that the plaintiff was not entitled to have the confessions of judgment or either of them amended or any part of the relief prayed for in the complaint, and that the defendant was entitled to have the judgments canceled of record. Judgment to this effect was entered, and having been affirmed at general term in the first district, the plaintiff appealed to this court.
    
      William C. Noyes, for the appellant.
    
      John Sherwood, for the respondent.
   Gould, J.

If the reference ordered by the Supreme Court (on the defendant’s motion to set aside the executions issued on the judgments and to order those judgments canceled) was without authority of law, then the whole decision of that matter was erroneous. But the reference was plainly within the meaning of section 271 of the Code, subdivision 3; and without the Code the court always had the right to refer to take proofs on matters upon which it desired fuller information before proceeding. In that matter, however, there is as to this defendant a further and a conclusive answer. He was the moving party and if he objected to the order granted in any respect, he should have appealed therefrom, and have had it made correctly. Instead of appealing he proceeded with the reference; and, indeed, he has never appealed from the decision or final order on the report of the referee. It is surely too late for him to take the objection that a reference was irregular.

Again, is that final order so made by the Supreme Court on that motion, conclusively binding on the defendant as an adjudication that those two judgments by confession were really given as security (not merely for the note named therein, but) for the debt arising out of the sale of the steamer Empire ? Upon this point it is to be observed that some decisions (made before the existence of the Code) especially that of Simson v. Hart, in the Court of Errors (14 Johns., 63), are chiefly based upon the ground that such summary proceedings as they passed upon,'were then heard without full proofs, and were not reviewable. Whereas, in the case before us, the hearing was upon full proofs; and the Code has entirely taken away the other ground by making the proceeding liable to review. By its section 349, the order referred to was appealable to the general term of the Supreme Court, and to this court by section 11, division 3; for if those judgments were given for purposes which had (at the time of the motion) been fully satisfied, it was matter of “ substantial right ” on the part of the defendant to have the executions vacated and the judgments canceled; and the motion was not addressed to any discretion from which no appeal lay.

Since then a full hearing, with the right of appeal, was open to the defendant on that motion, how is he to avoid the binding effect of that decision, so far as it covers what was actually and necessarily tried on that reference ? It was then necessary to determine: 1st. Whether the notes for which the judgments, on their face, were expressly given, were paid either in full or in part. 2d. If they were paid in full, whether the judgments in fact, and according to the intent and agreement of the parties, were meant as security for any other and what debt. 3d. If they were security for any other debt, whether so much of that debt remained unpaid that one judgment and execution must remain to secure it, or whether both judgments and executions must so remain; or whether (one of the judgments remaining wholly unsatisfied,) the other judgment should, for the amount it was to secure, be reduced from its face. It is entirely plain that, on that motion, the court could have shaped its order to meet either of these points.

And, as the papers show, all these points were actually litigated before the referee and on the motion; and the decision is, that in fact more was due and to be secured by the judgments than the face of both judgments. To this extent, therefore, the defendant should be held concluded by that adjudication. It was fully ascertained that, unless the judgments were security for what was called the Empire debt, they were both satisfied, and the defendant’s motion must have been granted. It was expressly found that they were not satisfied, because they stood to secure that further debt exceeding their, whole amount. So much, then, is finally adjudicated against the defendant; and this court has now no power to interfere with that decision.

As, however, the relief asked in this suit by the plaintiff involves the necessity of not merely making definite or precise a statement of indebtedness actually covered by the terms of the judgment, but of inserting in a statement made upon oath a distinct, substantive indebtedness not covered by the terms of the confession, it is not perceived how that is within the power of any court, especially when the party, whose oath to its truth is required, says on oath that it is not true.

The result at which we arrive is, that so much of the judgment of the court below as orders the canceling of the judgments by confession must be reversed; but that so much as denies to the plaintiff the affirmative relief asked by him should be affirmed and the judgment should be for costs against the plaintiff, and that his bill be dismissed.

All the judges concurring,

Ordered accordingly.  