#### Adams *v.*Tator.

*(Supreme Court, General Term, Third Department.*

July 7, 1890.)

L Confession of Judgment.

Code Civil Proo. N. *Y.*§ 2864, giving jurisdiction to justices of the peace to. enter confessions of judgments, does not confer authority to confess for a contingent liability. Section 3011 provides that, on the confession of judgment before a justice, there must he an affidavit stating that the defendant is honestly indebted to plaintiff in the sum specified, over and above all just demands which defendant has against plaintiff. *Held,*that a justice of the peace had no authority to enter a confession of judgment in favor of a surety on certain notes against the principal maker, where the surety had not paid the notes at the time of the entry of judgment, although before such entry he had agreed with the principal to make such payment.

B. Same.

The judgments being based principally on such notes, they were not valid as to certain minor items, covered by the judgments, which were actually due at the time confession was made.

Appeal from circuit court, Schoharie county.

Action by Ambrose W. Adams, as constable, etc., against John H. Tator.

Argued before Learned, P. J„ and Landon, J.

*Watson Lamont*and *William C. Lamont, (Nathaniel C. Moah,*of counsel, ) for appellant. *Albert Balter, (Hobart Krum,*of counsel,) for respondent.

Learned, P. J.

This is an action to recover damages for taking personal property. The plaintiff recovered, and defendant appeals. The plaintiff was in possession of the property by virtue of executions issued on two judgments recovered by one Mickle against one King on confession, March 10, 1885, before a justice of the peace,—one for $500, the other for $200. The defendant took the property by virtue of a chattel mortgage, executed to him by King, December 30, 1884, and not filed until March 14, 1885. On the first trial it was urged that plaintiff was not a constable. That point was disposed of when the case was here before, (42 Hun, 384,) and will not be again considered. The principal questions now are as to the validity of the judgments and the regularity- of the executions. It is urged that the confessions of judgment were in fact fraudulent, and also that the justice had no authority to take a confession of judgment, given, in fact, to secure contingent liabilities. In form the confessions authorize a judgment, but they state no fact.8 of any kind, and show no cause of action. It is further claimed by the defendant that the affidavit attached to each confession is defective. On the trial it appeared that the alleged indebtedness for which these judgments were confessed was made up as follows: (1) A joint and several note made by King and Mickle, dated October 30, 1884, for $400, at one year, held by a bank at Middleburgh, when the confession was given. As between the parties, Mickle was surety for King, who received the avails. (2) A promissory note made by King and Mickle, dated March 14, 1884, for $49 and interest, at one year, held by George D. Brayman, on which Mickle was in fact surety. (3) A promissory note made by King and Mickle, dated March 13,1884, for $68.40 and interest, at 10 months, held by Mrs. Poland, on which also Mickle was in fact surety. (4) An indebtedness on book-account of about $64.37, and perhaps borrowed money, $130. There is evidence to the effect that, just before the confessions, Mickle and King looked over their affairs, and that there were found liabilities to over $700, including these notes; that they agreed to call the amount $700; that Mickle - agreed to pay the notes if King would give the security; and that on this arrangement the judgments were confessed.

It is evident that the notes above mentioned formed the principal part of the indebtedness for which the judgments were confessed. The learned justice who tried the case expressed some doubt on the question of the confess *618sion of these judgments for a contingent liability, but decided to hold the judgments good in that respect. Section 2864 gives a justice of the peace jurisdiction to enter confession of judgments as prescribed in title 6 of chapter 19. Sections 3010, 3011, prescribe the mode, and are substantially like the provisions of the lievised Statutes. The third subdivision of the latter section requires that, when the judgment exceeds $50, there must be an affidavit of the parties, “stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein, over and above all just demands which the defendant has against the plaintiff.” The argument of the defendant is that Bring was not indebted to Mickle at the time of the confession upon the notes, nor even upon Mickle’s agreement to pay them, though he might become so indebted when Mickle paid. It is worthy of notice, in considering this question, that, in regard to confessions in courts of record, the Code is precise and clear. It gives express authority to confess for a contingent liability, and requires a verified statement of the facts constituting such liability. Sections 1273,1274. See *Bank*v. *Doty,*41 Hun, 76. And some inference may be drawn therefrom that, if confessions of judgment in justice’s court were authorized for contingent liability, a similar provision would have been made for a statement of facts. In the present case the confession states no facts whatever. It does not show for what cause of action the judgment is to be entered,—whether for assault and battery, for damages in taking a chattel, for money loaned, or for goods sold. It only authorizes a judgment for a certain amount, or no cause of action whatever. We have doubts whether such is the proceeding authorized by the Code. A “confession” means, ordinarily, the acknowledgment of some facts; and it is reasonable that facts should be stated at least as fully as would be done in a complaint in the same court. This might be quite important in order to show the nature of the execution to be issued. Section 3026.

But, passing this, we cometo the question as to the contingent liability. It is certain that at the time of the entry of the judgments King was indebted on the notes, not to Mickle, but to the holders. A principal is not indebted to the surety until the surety has paid the debt. Even though Mickle, in consideration of the giving these judgments, had agreed to pay the debt, still it could not be said that King was indebted to Mickle for these notes at the time when the judgments were given. Whether Mickle would pay them or not was uncertain. If he paid them, King, would owe him; if he did not, King would not owe him. All was contingent. This is not saying that it would not be a lawful arrangement for King to secure Mickle, on receiving such a promise. We are only examining whether the language required in the affidavit, viz., that the defendant is justly and honestly indebted to plaintiff in the sum specified, can be construed to comprehend such an arrangement. Mickle was already liable on these notes. He assumed no new obligation. He simply obtained a judgment against King before paying the notes, which he would have been able to recover after paying them. Only after he had paid them, King would have become indebted to him; before, King was not. When, then, the Code requires such an affidavit, it shows that there must be an existing debt to the plaintiff. Probably the debt need not be yet payable. For that case a stay of execution is provided. Section 3010. But the defendant must owe the plaintiff. *Debitum in prcesenti solvendum in futuro.*Debt existed in the present case, but not to this plaintiff; that is, as to the three notes. *Smith*v. *Krauskopf,*13 Hun, 526, and cases cited.

But the plaintiff insists that by the effect of the agreement between Mickle and King, just prior to the confessions, $700 was due and owing by King to Mickle, without any contingency. Very probably, the agreement, based on the promise by King to confess judgment, might have been valid. But the agreement was nothing more than making Mickle the principal debtor, and *619King the surety, on the notes, as between themselves; and it could not be said that King was indebted to Mickle in that amount over and above all just demands. The plaintiff urges that judgment may be confessed for a tort, and that a tort is not a debt. That may be true. But, when the parties have settled and agreed on the damages which are to be paid in compensation for a tort, it might not be a forced construction to say, in such an affidavit, that the defendant was indebted in that amount. Whether, however, a case of tort is within these sections we need not decide. It is true that in this case Mickle did subsequently pay these notes. But we think that the learned justice correctly held that such payment was immaterial as to the point now considered. In confessions of judgment in courts of record, there is a special provision for the issue of execution when the debt is not all due; the word “due” there meaning “payable.” Section 1277. See *Jaffray*v. *Saussman,*5 N. Y. Supp. 629, and *Bank*v. *Salomon,*Id. 632. In section 3026, it is provided that executions on justices' judgments must specify the sum recovered and the sum actually due. Now, whatever the meaning of the word “due” in this section, as the executions were issued the same day with the judgments, it is plain that, as to the amount of the notes, nothing was due, in either meaning. And the executions in fact did not state that any amount was due,—a defect which may be a mere irregularity. Wethink, then, that the absence of any special provision for the entry of judgments on confession in justices’ courts for contingent liabilities, with the requirement of the affidavit above referred to, shows that no such confessions were contemplated by the statute. There is reason for this, because proceedings in justices’ courts are simple, and adapted to plain cases. And it would seem strange, if judgments on contingent debts had been contemplated, that provisions similar to those of section 1274 were not added.

The plaintiff urges that the judgments are good at least to the extent not given to secure the notes. We do not see how, in regard to these justices’ judgments, we can hold this. There is a slight variation in the form of affidavits from that required by Code, § 3011, subd. 3. The affidavits follow the language of 2 Bev. St. marg. p. 245, § 114, subd. 3. We do not think the variation is fatal. We think, therefore, that these judgments on confession cannot be sustained, and that the judgment and order appealed from must be reversed, and a new trial granted, costs to abide event.