
    Heckemann v. Young et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 10, 1890.)
    Judgment—Entry—Merger—Joint Debtors.
    Plaintiff entered judgment by consent against one of two joint debtors, under Code Civil Proo. N. Y § 738, which provides that on the written offer of one or more of several defendants, “if the action can be severed, ” judgment may be entered against them. Held, that this judgment was a bar to any further proceedings against the other joint debtor, though section 1278 provides that on the confession of one or more joint debtors a judgment may be entered against them, which shall not bar an action against all the joint debtors on the same demand, as the “confession” must comply with section 1274, which requires the judgment to be en tered on a written statement, signed by defendant, verified, stating the facts out of which the debt arose, and that it is justly due, or to become due.
    On rehearing.
    This case, on the first hearing, (5 N. Y. Supp. 212,) being considered on a mistaken theory as to the facts, a rehearing was granted. 7 H. Y. Supp. 946, 949. Code Civil Proc. H. Y. § 738, provides: “The defendant may, before the trial, serve upon plaintiff’s attorney a written offer to allow judgment to be taken against him for a sum, or property, or to the effect therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken.”
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      G. R. Hawes, for plaintiff. A. Edward Woodruff, for defendant.
   Brady, J.

This action was brought to recover the sum of $5,892.28, with interest from May 1, 1886, due from the defendants, as copartners. Both of the defendants appeared, but by separate attorneys, the complaint having been amended in the mean time. The defendant Adams, on the 19th of January, 1887, withdrew his answer, and consented to the entry of judgment by ■default. The defendant Young already being in default for his failure to answer, judgment was entered against both defendants on the 20th of January, 1887. Subsequently, and on the 2d May, 1887, an order was made vacating the judgment as to Young, and giving him 20 days to answer; and it would appear, from the language of the order, that thejre was some irregularity in the entry of the judgment, inasmuch as the ordar directs that the judgment be vacated, with $10 costs to the defendant Young, which would not be the case where the motion to vacate was predicate of an appeal by the defendant to the favor of the court. The defendant Young then set up, by way of answer, that a judgment had been entered in this action against the defendant Adams, and that thereupon the debt which the action was brought to recover against him and Adams, as joint debtors, became merged in that judgment, and was a bar to any further proceedings.

The question presented is whether the answer thus described is, as claimed, a bar to this action; the learned counsel having so contended upon his motion to dismiss the complaint, when the plaintiff rested. The complaint was dismissed; the learned judge entertaining this view, but directing the plaintiff’s exceptions to be heard, in the first instance, at the general term. In order to overcome the effect of the answer interposed as a bar to any further proceedings, section 738 of the Code has been invoked by the plaintiff, and the opinion of Chief Justice McAdam in Kantrowitz v. Kulla, 13 Civil Proc. R. 74, is relied upon. The learned chief justice regards the section just mentioned as a substitute for the former cognovit, by which a defendant who had no defense gave to the plaintiff a written confession, and then proceeds to express his views, to the effect that there is no cogent reason why the new rule introduced by section 1278, as to confessions by one of several joint debtors, should be limited in its applications to “confessions,” technically so called, and declared that section 1278 applied to the case then in hand, and, by force of its provisions, judgments against one joint debtor, upon his offer of judgment, did not merge the debt or bar the creditor against the other debtor, not included in the offer of judgment. The learned justice seems to have been misled by his interpretation of section 738. That provision is expressly limited to two or more defendants, when the action can be severed. It does not, therefore, contemplate joint debtors. If there are two or more defendants, and the action can be severed, an offer may be made, etc. Besides that, when a confession of judgment is made, it must be made under the forms prescribed by the statute; and it is a proceeding wholly separate and entirely different from an offer made under the provisions of section 738. Section 1278, which it was sought to combine with section 738, provides, when one or more joint debtors may confess a judgment for a joint debt, where all do not unite in .the confession, the judgment must be entered and enforced against those who confessed it, and it is not a bar to an action against all the joint debtors upon the same demand. But the confession must conform to the requirements of section 1274, namely, a written statement signed by the defendant, verified, stating the facts out of which the debt arose, and that the same is justly due, or to become due, and, if given for the purpose of securing the plaintiff against a contingent liability, it must concisely state the facts constituting the liability. We have therefore presented, as bearing upon the question suggested, the fact that the judgment entered against the defendant Young was improperly entered and vacated, and time given to answer, and offer of judgment provided for by section 738, which does not relate to joint debtors, and a so-called “confession, ” which is invalid, for the reason that it does not comply with the statute governing such acts. The consequence is that the plaintiff took a judgment against' one of two joint debtors, and the debt was merged in the judgment. His error was in entering the judgment, until he had the right to do so, against the other defendant, when he might have used the offer under section 738, in conjunction with a default or a verdict, or the report of the referee as to the other defendant. He did not do so; and the consequence is, on well-established authority, that the judgment merged the claim. In Candee v. Smith, 93 N. Y. 352, it was distinctly held that when the holder of a joint promissory note, prior to the Code, § 1278, took judgment, by confession, for the whole amount, against one of the makers, the liability of the other makers was discharged by the judgment; the note as to the others having been merged therein. In that case the court recognized the rule stated as to joint debtors, and said that the current of authority had been for a long course of years uniform and unbroken. When this case .was formerly considered (5 N. Y. Supp. 212) it was supposed that the application to open the judgment as to Young was addressed to the merciful consideration of the court, resting upon no right, therefore, and that it was ungracious, after the favor had been extended to the defendant Young, that he should set up as a defense the existence of the judgment. But a closer examination of the record shows this point to be erroneous, and that the vacation of the judgment and the leave to answer left the rights of the defendant Young wholly intact. For these reasons the exceptions should be overruled, and judgment ordered for the defendant, with costs. All concur.

NOTE BY THE EDITOR.

Judge Barrett, on making the order setting aside the judgment by default against defendant Young, which order is referred to in the opinion in this case, on July22,1887, filed the following memorandum:

“The plaintiff's practice here has been irregular, and cannot be commended. The defendant, in case there had been a live plaintiff on the record, would have been bound to answer the amended complaint, as the latter alleged a different sum of money to be due from the sum specified in the original complaint. He might have denied, under oath, owing the larger sum, but be unable to deny owing the smaller sum. But this-error did not justify the plaintiff’s subsequent course. She proceeded in the cause-without regard to the omission to answer the amended complaint; and, while there may have been no technical waiver, there certainly was enough to render the entry of judgment without notice both irregular and improper. But, further, the plaintiff subsequently foundit necessary to amend, herself, and thaton notice to this defendant. Having brought her suit in the name of a deceased person, she was given leave to amend: by inserting her own name as plaintiff. Clearly, she should have served an amended: complaint, and the defendant should have had the legal time to admit or deny her allegations as to his indebtedness to her. Instead of that, she proceeded to enter judgment on the old default claimed as between the deceased person and the defendant, disregarding all that had occurred, and giving no notice as required by law. The judgment must be vacated, with costs, with leave to plaintiff to serve her complaint, andl with leave to defendant to answer it, when served, in twenty days.” 
      
      See note at end of opinion.
     