Whitney v. Kenyon
New York Supreme Court
The administrator of the defendant moves to set aside a judgment entered by confession djis court in November 1849. The defendant died in January 1850, and in March 1851 letters of administration upon (he estate of the deceased was granted to the person now moving.
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The administrator of the defendant moves to set aside a judgment entered by confession djis court in November 1849. The defendant died in January 1850, and in March 1851 letters of administration upon (he estate of the deceased was granted to the person now moving. The affidavits show the estate of the defendant in the judgment to be .insufficient for the payment of his debts, and that if the judgment is paid in full, the other creditors., will receive but a very small dividend.
1Opinion of the Court
W. F. Allen, Justice.
The judgment purports to have been 'confessed for money actually due the plaintiff, and the objection is that the statement in writing required by section 383 of the Code, does not sufficiently state “ the facts out of which it arose,” it merely sets out a copy of a promissory note as the foundation or origin of the debt. As a mere irregularity, the party moving can not avail himself of the alleged defect in the statement of the consideration of the judgment, more than one year having elapsed since the judgment was rendered (2 R. S. 4th ed. 606, §2; Code, § 174; Park agt.…
2Cases cited2 opinions
- White v. WilliamsNew York Court of Chancery · 1829
- McKnight v. MorganNew York Supreme Court · 1848
3Cited by1 opinion
- Van Benthuysen v. LyleNew York Supreme Court · 1853