Fuller v. Straus
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, Ferdinand A. Straus and another, individually and as executors, etc., of Jacob Ballin, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Mew York on the 21st day of March, 1899, upon the decision of the court, rendered after a trial at the Mew York Special Term, setting aside a confession of judgment made by Moritz Ballin and another, composing the firm of Ballin Brothers,…
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Appeal by the defendants, Ferdinand A. Straus and another, individually and as executors, etc., of Jacob Ballin, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Mew York on the 21st day of March, 1899, upon the decision of the court, rendered after a trial at the Mew York Special Term, setting aside a confession of judgment made by Moritz Ballin and another, composing the firm of Ballin Brothers, to Ferdinand A. Straus and Adelaide Ballin, as executors, etc., of Jacob Ballin. deceased.
1DissentIngraham, J.
I am unable to concur with Mr. Justice Rumsey. By section 1274 of the Code it is provided that to confess a judgment, “ A written statement must be made and signed by the defendant to the' following effect: * * *
“ 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 become due.”
This provision requires that the statement shall “ state concisely the facts, out of which the debt arose,” not a legal conclusion from facts that are not. stated. It is,…
2Cases cited2 opinions
- Wood v. . MitchellNew York Court of Appeals · 1889
- Critten v. . VredenburghNew York Court of Appeals · 1897