
    Lucius Bradley, Appellant, v. Adelbert C. Glass, Defendant. John L. Shultz and Carrie E. Wells, Respondents, v. Adelbert C. Glass, Defendant.
    
      Confession of judgment — insufficient statement of the cause of the indebtedness— amendment of the statement allowed.
    
    A confession of judgment whose statement alleges that the debt is-“for goods sold and delivered to me by plaintiffs prior to the date hereof, and that said goods were sold and the payment thereof became due as aforesaid,” is insufficient . under subdivision 2 of section 1274 of the Code. of Civil Procedure, as it does. ' not show what the goods were, nor when or where they were sold, nor what was their value.
    The insufficiency of such a statement appearing to he the result of inadvertence rather than of design, the court considered that an amendment thereof should . be permitted upon reasonable terms.
    Appeal by Lucius Bradley, the plaintiff in the first above-entitled action and a judgment creditor of the defendant in each of the above-entitled actions, from an order of the Snjireme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Cayuga on the 19th day of February, 1897, denying his motion to vacate a confession of judgment made by the defendant, Adelbert 0. Glass, in favor of John L. Shultz and Carrie E. Wells.
    
      Mortimer V. Austin, for the appellant.
    
      M. F. Dillon, for the respondents.
   Adams, J.:

The appellant is a judgment creditor of the defendant Glass, his judgment being subsequent in point of time to one confessed by the same defendant in favor of John L. Shultz and Carrie E. Wells; and he is endeavoring to have the prior judgment vacated upon the ground of the insufficiency of the statement upon which the confession was entered.

It is required by subdivision 2 of section 1274 of the Code of Civil Procedure that, “ If the judgment to be confessed is for money due or to become due, it must state concisely the facts out of which the debt arose ; and must show that the sum confessed therefor is justly due or to become due.”

The statement accompanying the judgment in question is that the judgment confessed is for a debt or liability justly due the judgment creditors which arose upon the following facts, viz.: “ Eor goods sold and delivered to me by plaintiffs prior to the date hereof, and that said goods were sold and the payment thereof became due as aforesaid.”

The requirement of section 1274 was designed, as was said in the case of Wood v. Mitchell (117 N. Y. 439), to enable an interested party to ascertain from an examination of the statement whether the confession of judgment was accurate, honest and bona fide ” and we are persuaded that this particular statement falls short of accomplishing that purpose. In fact, it furnishes little or no information in respect to the precise nature of the indebtedness to secure which the judgment was confessed, save that it was for goods sold and delivered.” But what the goods were, or where they were sold, or what was their value, does not appear. They may have been of little or no value, and they may have been sold ten or twenty years prior to the date of the confession; in either case the statement would have been literally true, although a confession of judgment resting upon such a consideration might well be regarded as a fraud upon the rights of subsequent judgment creditors.

Our attention has been directed to a recent decision of this court which, it is claimed, involved a question like the one now under-consideration and arose under somewhat similar circumstances. (Burhans & Black Co. v. Blanchard, 12 App. Div. 624.) No-opinion was written in.that case, but it will be found, upon referring-to the record, that the statement which was there deemed sufficient contained the very elements which, as we have shown, are wanting-in this case.. Moreover, it is fair to say that, even with these additional facts present, this court reached the conclusion it did in the-case cited with some little hesitation, and certainly with no intention of furnishing a precedent for any further relaxation of the-principle which was there considered and applied..

Having, reached the conclusion that the statement contained in. the first confession of judgment was inadequate, it follows that the-subsequent judgment creditor can avail himself of this defect.. (Chappell v. Chappell, 12 N. Y. 215), and that his motion should have been granted. But, inasmuch as the insufficiency of the statement was probably the result of inadvertence, rather than of design, we think this court is fairly called upon to exercise the power which it doubtless possesses, of permitting an amendment upon such terms ■ as are reasonable. (Mitchell v.Van Buren, 27 N. Y. 300 ; The Union Bank v. Bush, 36 id. 631.)

The order appealed from is, therefore, reversed, with ten dollars: costs and disbursements, and the motion granted, with ten dollars . costs, but with leave to the judgment creditors, in the first confes- ■ sion, to obtain-from the judgment debtor an amended statement, and. to file the same as of the date when the original statement was filed,. at any time within twenty days from the service of the order of" reversal herein, upon his paying the costs above specified, and when, so filed it shall have the effect of validating the judgment as against: all subsequent creditors, except the appellant herein.

All concurred, except Follett, J., not sitting.

Order appealed from reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to obtain and file an amended statement of confession in the manner-stated in the opinion.  