TITLE 1. Docket; when to be discharged and cancelled. Discharge of a judg ment against a bankrupt. fees allowed by law therefor, a certified copy of the execution, and of the return of satisfaction thereupon; which may be filed with the clerk of the same county, who must thereupon cancel and discharge the docket of the judgment, as if the judgment-roll was filed in his office, and the execution was returned to him, as satisfied. But this section does not exonerate the sheriff, from his duty to return the execution, to the clerk with whom the judgment-roll is filed. [L. 1860, ch. 6, § 1 (4 Edm., 635), amended by omitting the clause, confining the provision to an execution "issued upon a judgment obtained in any other county"; by adding a clause requiring the return to be immediately endorsed upon the execution; and otherwise, so as to conform to those changes. This is a very beneficial statute; as it enables a party, who pays an execution, to discharge the judg ment lien immediately, without waiting until it suits the sheriff's convenience to return the execution, and then, if the judgment was recovered in another county, until the clerk sends the necessary certificate, and the party files it. The privilege may be of great importance to the judgment debtor, and to third persons, as upon the sale of lands, or where the sheriff loses the execution, before returning it. The operation of the provision has, accordingly, been extended to all cases, and made more effective.] § 1267. The clerk of a county, with whom a judgment has been docketed, must cancel and discharge the docket thereof, upon the filing, with him, of a certificate of the clerk, with whom the judgment-roll is filed, showing that the judgment has been reversed, vacated, or satisfied of record; or the certificate of the clerk of the county, with whom a copy of an execution, and of a return of satisfaction thereupon, have been filed, as prescribed in the last section, showing that they have been so filed, and the docket cancelled and discharged accordingly. [Id., § 2, and L. 1844, ch. 104, § 5 (3 R. S., 5th ed., 641; 4 Edm., 627), consolidated, except that the clause relating to fees has been omitted, as it does not belong here.] § 1268. At any time after two years have elapsed, since a bankrupt was discharged from his debts, pursuant to the acts of congress relating to bankruptcy, he may apply, upon proof of his discharge, to the court in which a judgment was rendered against him, for an order, directing the judgment to be cancelled and discharged of record. If it appears that he has been discharged from the pay ment of that judgment, an order must be made accordingly; and thereupon the clerk must cancel and discharge the docket thereof, as if the proper satisfaction-piece of the judgment was filed. Notice of the application, accompanied with copies of the papers upon which it is made, must be given to the judgment creditor, unless his written consent to the granting of the order, with satisfactory proof of the execution thereof, and, if he is not the party in whose favor the judgment was rendered, that he is the owner thereof, is presented to the court, upon the application. [L. 1875, ch. 52. This section is imperative. Am. Exchange Bank v. Brandreth, 12 Hun, 384. It applies to a judgment in favor of the People. Matter of Brandreth, 14 id., 585. See Fellows v. Kittredge, 56 How. Pr., 498.] ABT. & Courts docket. § 1269. A court of record has the same power and jurisdiction, Power of concerning the docket of its judgments, kept by a county clerk, respecting which it has concerning the docket, kept by its own clerk. It may direct that such a docket be amended; or that its judgment, there docketed, be docketed nunc pro tunc. [L. 1844, ch 104, §7 (4 Edm., 628).] file and signment ment. § 1270. Upon the presentation, to the clerk of a court of record, clerk to of an assignment of a judgment, entered in his office, executed by note asa person entitled to satisfy the judgment, as prescribed in section of judg 1260 of this act, and otherwise executed as prescribed in that section, with respect to a satisfaction-piece, and upon payment of the fees, allowed by law, for filing a transcript, and docketing a judgment thereupon, the clerk must forthwith file the assignment in his office, and make, upon the docket of the judgment, an entry of the fact, and of the day of filing: or, if he keeps a separate book for the entry of assignments of judgments, an entry, referring to the page of the book, where the filing of the assignment is noted. [New. A series of provisions, for entering, in a separate docketbook, assignments of judgments, were contained in the draft first issued by the commissioners. They provoked such differences of opinion, respecting their necessity and even expediency, not only among the members of the bar, to whom the paniphlets were sent, but among the members of the commission, that the commissioners determined to omit them; retaining only this section, which provides simply for filing and noting an assignment, executed by the apparent owner of the judgment, and permitting the clerk to keep a separate book, if, as will probably happen in the larger counties, there is not room for the entries upon the docket.] TITLE 2. To what judgments and executions this article applies. [Section 1271 of the act of 1876 provided that a transcript of a judgment, rendered, within the State, by a court of the United States, might be filed and docketed as if it had been rendered by the supreme court of the State. This section was a revision of L. 1847, ch. 470, first sentence of § 39. It was expunged in 1879, as the courts had held that no execution or other remedy could be founded upon it.] § 1272. This article applies only to a judgment, wholly or partly for a sum of money, or directing the payment of a sum of money; and to an execution issued upon such a judgment. [Inserted to guard against the possibility of applying the provisions of this article, to judgments other than for money.] TITLE II. Judgments taken without process. ARTICLE 1. Confession of judgment. 2. Submission of a controversy, upon facts admitted. ARTICLE FIRST. may be When married woman CONFESSION OF JUDGMENT. SEC. 1273. Judgment may be confessed. When married woman may confess 1274. Statement; form thereof. 1275. Statement to be filed, and judgment entered. 1276. Judgment roll; docketing and enforcing the judgment. Judgment § 1273. [Amended, 1877.] A judgment by confession may be confessed. entered, without action, either for money due or to become due, or to secure a person against contingent liability in behalf of the de fendant, or both, as prescribed in this article. A married woman may confess such a judgment, if the debt was contracted for the may con. benefit of her separate estate, or in the course of any trade or other business carried on by her on her sole and separate account. [The first sentence consists of Co. Proc., § 382, without material change, even in phraseology. The second sentence, as drafted by the commissioners and enacted in 1876, allowed a married woman to confess a judgment" as if she was single ". This accords with the policy of §§ 450 and 1206, ante. The courts have held that a judgment, by confession, against a married woman, entered before the act of 1860, 18 voidable, and may be set aside on her motion. Watkins v. Abrahams, 24 N. Y., 72; Roraback v. Stebbins, 3 Keyes, 62. But since the acts of 1860 and 1862, such a judgment will stand, if the debt was contracted for her own benefit, in carrying on a separate business. First N. Bank of Canandaigua v. Garlinghouse, 53 Barb., 615. The amendment of 1877 restricts the rule to the limits thus established by the courts.] ART. 1. § 1274. A written statement must be made, and signed by the Statedefendant, to the following effect: 1. It must state the sum, for which judgment may be entered, and authorize the entry of judgment therefor. 2. 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 Decome due. 3. If the judgment to be confessed is for the purpose of securing the plaintiff, against a contingent liability, it must state concisely the facts, constituting the liability; and must show, that the sum confessed therefor does not exceed the amount of the liability. The statement must be verified by the oath of the defendant, to the effect, that the matters of fact therein set forth are true. [Co. Proc., § 383, amended so as to correct the most glaring of its defects of style, chiefly by avoiding the constant repetition of the pronoun, "it", which is used, in two lines of the second subdivision, as a relative to three different antecedents. In other respects, the section, which has stood in the statute book, in its latest form, since 1848, has been left substantially unaltered. Its vague language led to much controversy and conflict of authorities, for many years after it took effect. But the court of appeals has now definitively settled the principles, upon which it should be construed (Dunham v. Waterman, 17 N. Y., 9; Gandall v. Finn, 1 Keyes, 217; Acker v. Acker, id., 291); and has applied those principles to cases, presenting such a great variety of facts, that it is believed that scarcely any question can arise in future, which may not readily be determined, by analogy to some reported case. See, in addition to the three cases cited, Dow v. Platner, 16 N. Y., 562; Lanning v. Carpenter, 20 id., 447; Freligh v. Brink, 22 id., 418; Miller v. Earle, 24 id., 110; Neusbuum v. Keim, id., 325; Hop ment; form thereof. TITLE 2. State ment tc be filed, kins v. Nelson, id., 518; Thompson v. Van Vechten, 27 id., 568; Read v. French, 28 id., 285; Ely v. Cooke, id., 365; Frost v. Coon, 30 id., 428; Kirby v. Fitzgerald, 31 id., 417; Kellogg v. Cowing, 33 id., 408; Clements v. Gerow, 1 Keyes, 297; Cook v. Whipple, 55 N. Y., 150; and Harrison v. Gibbons, 71 N. Y., 58. There are other decisions, with respect to the sufficiency of the verification, signature, etc., but none which require special mention.] § 1275. At any time within three years after the statement is and judg- verified, it may be filed with a county clerk, or with the clerk of a ment entered. superior city court, or, where the sum, for which judgment is confessed, does not exceed two thousand dollars, exclusive of interest from the time of making the statement, with the clerk of the marine court of the city of New-York. Thereupon the clerk must enter, in like manner as a judgment is entered in an action, a judgment for the sum confessed, with costs, which he must tax, to the amount of fifteen dollars, besides disbursements taxable in an action. If the statement is filed with a county clerk, the judgment must be entered in the supreme court; if it is filed with the clerk of another court, specified in this section, the judgment must be entered in the court of which he is clerk. But a judgment shall not be entered pon such a statement, after the defendant's death. [Co. Proc., § 384, first sentence; amended, in matters of substance, as follows: A clause has been added at the commencement of the section, limiting the time of filing to three years, in order to supply a defect in the original statute, which fixes no limit to the time within which the judgment may be rendered. Curtis v. Corbett, 24 How. Pr., 58. The words, "a superior city court" have been substituted in place of "the superior court of the city of New-York", so as to permit the judgment to be entered in the New-York common pleas, the city court of Brooklyn, or the superior court of Buffalo; and a clause has been added, at the end of the first sentence, allowing the judgment, in a proper case, to be entered in the marine court of New-York city, as provided in § 315, subd. 4, ante. The amount of the costs has been increased from $5 to $15, to correspond to the sum allowed, upon a judgment, taken by default, in an action. Co. Proc., § 307, subd. 1. The sum of $5 was fixed by the legislature of 1848, at the same time when the costs upon default were fixed at $7. It was, doubtless. supposed that the skill, labor, and responsibility, required to prepare the statement, would be less than those required to prepare a complaint; but this expectation has been disappointed. There is no reason why the costs should be less, in one case than in the other; and the inadequacy of the costs, allowed upon confession, constitutes an excuse for the practice of collusive offers of judgment in an action. The sentence, added at the conclusion, seems necessary, because this proceeding is not an action; and, accordingly, there might be a doubt, whether the permissive words of the statute will not allow judgment to be entered after the defendant's death. Sections 763 and 765, ante, do not apply.] |