Cases

DETERMINED IN THE

SECOND DEPARTMENT

IN THE

APPELLATE DIVISION,

February, 1899.

DANIEL A. DORAN, Appellant, v. HENRY BUSSARD, Respondent.

City of Yonkers — removal of an action from a Justice's Court to a City Court · it is a change of forum, not of venue, and is not prohibited by section 18 of article 3 of the Constitution.

The removal of an action, commenced in the Justice's Court of the city of Yonkers, to the City Court of that city, pursuant to chapter 186 of the Laws of 1878, entitled "An act in relation to the city court of Yonkers," as amended by chapter 416 of the Laws of 1893, constitutes a change of forum and not a change of venue within the provision of section 18 of article 3 of the Constitution of the State of New York, forbidding the Legislature to pass a local bill "providing for changes of venue in civil or criminal cases."

APPEAL by the plaintiff, Daniel A. Doran, from a judgment of the City Court of Yonkers in favor of the defendant, entered in the office of the clerk of said court on the 26th day of May, 1898, upon the verdict of a jury.

Adrian M. Potter, for the appellant.

Ralph Earl Prime, Jr., for the respondent.

GOODRICH, P. J.:

The action was originally commenced in a Justice's Court in the city of Yonkers and removed to the City Court of that city, pursuant to chapter 186 of the Laws of 1878, entitled "An act in relation to the city court of Yonkers," as amended by chapter 416 of the Laws of 1893. The defendant contends that the act violates article

App. Div.]

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

3, section 18, of the Constitution, which forbids the Legislature to pass a local bill "providing for changes of venue in civil or criminal cases." The question is first raised on this appeal. We are clearly of opinion that the act in question is not in conflict with the Constitution.

The constitutional inhibition does not relate to a removal of a cause from one court to another. The same provision appears in the amendments of the Constitution which took effect in January, 1875. There have been numerous acts of the Legislature, before and since that time, providing for the removal of causes from inferior to superior courts. Familiar instances of such removals can be found in the statutes authorizing the removal of causes from the District Courts of the city of New York to the Common Pleas of the city and county of New York, and from the Common Pleas, the Superior Courts of the cities of New York and Buffalo and the City Court of Brooklyn to the Supreme Court.

I can find no case which holds that such removal is a change of venue. On the contrary, it is a change of forum. This distinction. is clearly recognized in section 319 of the Code of Civil Procedure, which provides for the removal of causes from the City Court of New York to the Supreme Court for the very purpose of changing the place of trial to some other county, and such legislation remains unchallenged.

The action was brought to recover broker's commissions, and the vital question was whether the plaintiff was the procuring cause of the sale. There was evidence which justified the submission of this question to the jury, and we see no reason to interfere with the verdict. We do not find that the other exceptions in the case require discussion.

The judgment must be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

[Vol. 38.

MARY JANE MATHER, Appellant, v. WILLIAM A. MATHER, Defendant.

NELSON MORRIS and Others, Respondents, v. WILLIAM A. MATHER, Defendant.

JAMES WHITE, Respondent, v. WILLIAM A. MATHER, Defendant. ISAAC E. MATHER, Appellant.

Confession of judgment

when it states "concisely the facts out of which the debt arose" —a misstatement as to the amount due constitutes perjury—the facts are sufficiently stated if they would constitute a good complaint.

A confession of judgment for $4,200, which states: "This confession of judgment is for a debt or liability justly due, and to become due, to the said plaintiff from me, W. A. Mather, arising upon the following facts, viz.: The defendant has, from time to time, borrowed of the plaintiff money, and there is now due, and to become due, to this plaintiff from the defendant aforesaid the sum of fortytwo hundred dollars ($4,200), for cash borrowed and interest thereon, for which plaintiff holds two promissory notes of this defendant, copies of which are hereunto set forth, viz.," followed by copies of the two notes, sufficiently complies with section 1274 of the Code of Civil Procedure, requiring a confession of judgment to "state concisely the facts out of which the debt arose." Semble, that any misstatement as to the amount due would render the defendant liable to an indictment for perjury.

Semble, that a confession of judgment is sufficient, provided a complaint alleg. ing the facts stated in the confession would not be demurrable.

APPEAL by Mary Jane Mather and Isaac E. Mather from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Rockland on the 28th day of October, 1898, granting the motion of the plaintiffs in the second and third of the above-entitled actions to vacate a judg ment entered by confession in favor of Mary Jane Mather and against William A. Mather, and afterwards assigned to Isaac E. Mather.

John W. Furman [William McCauley, Jr., with him on the brief], for the appellants.

II. B. Bradbury, for Morris and White, respondents. GOODRICH, P. J. :

The confession of judgment contains the following:

App. Div.]

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

"I, W. A. Mather, defendant herein, of the town of Ramapo, County of Rockland and State of New York, do hereby confess judgment in this court, in this action, in favor of Mary Jane Mather, plaintiff, for the sum of forty-two hundred dollars ($4,200), and hereby authorize her, Mary Jane Mather, plaintiff herein, her heirs, executors, administrators or assigns, to enter judgment therefor against me, W. A. Mather, defendant herein.

"This confession of judgment is for a debt or liability justly due, and to become due, to the said plaintiff from me, W. A. Mather, arising upon the following facts, viz.: The defendant has from time to time borrowed of the plaintiff money, and there is now due and to become due to this plaintiff from the defendant aforesaid the sum of forty-two hundred dollars ($4,200) for cash borrowed and interest thereon for which plaintiff holds two promissory notes of this defendant, copies of which are hereunto set forth, viz.:

"SLOATSBURGH, N. Y., April 1, 1897. "One year after date I promise to pay to Mrs. Mary Jane Mather twenty-six hundred dollars, with interest, value received.

"W. A. MATHER.

"SLOATSBURGH, N. Y., April 1, 1898.

"One year after date I promise to pay to Mrs. Mary Jane Mather

sixteen hundred dollars, value received.

"W. A. MATHER."

The opinion of the learned justice is as follows:

"The statement for judgment is insufficient. The requirement that it must state concisely the facts out of which the debt arose' (Code Civ. Proc. § 1274) was not fulfilled. The statement is principally of legal conclusions instead of precise facts by day, date and amount from which the legal conclusions could be drawn that the defendant loaned specific sums to the plaintiff, and that of the same the sum confessed has not been paid back. The statement that 'there is now due, and to become due,' a sum named is a conclusion of law, and there being no statement of fact from which such conclusion may be calculated and drawn it is nugatory. There should be a statement of facts so precise that any one could, therefrom, figure out and state the amount unpaid and calculate the interest APP. DIV.- VOL. XXXVILL

5

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

[Vol. 38. thereon. No one can read the varying decisions upon the subject with entire satisfaction, but I think the foregoing is the rule. (Wood v. Mitchell, 117 N. Y. 439.) The promissory notes without a statement of fact showing an indebtedness for the amounts for which they were given are insufficient (Chappel v. Chappel, 12 N. Y. 215), though it seems that an account stated without any facts to show what the indebtedness arose out of is sufficient. (Critten v. Vredenburgh, 151 N. Y. 536.) I do not for the moment perceive the distinction."

I fully assent to the suggestion of confusion of authorities which will appear by a fuller reference thereto.

The latest expression of the Court of Appeals is the case last cited, where that court, referring to Wood v. Mitchell (supra), practically reaffirmed its authority and held that it did not conflict with the previous case of Broistedt v. Breslin (105 N. Y. 682), which was an affirmance without opinion of a judgment at the General Term (5 N. Y. St. Repr. 67) and supported a confession of judgment containing the following statement: "This confession of judgment is for a debt justly due to the plaintiff arising upon the following facts: The defendant, at different times, borrowed of the plaintiff divers sums of money, and also purchased of the plaintiff horses, and on an accounting of their dealings together this day there was found to be due from the defendant to the plaintiff the sum of two thousand two hundred and ninety-eight dollars, and for which amount this confession is made." The court at General Term said: "It discloses the dealings and transactions from which the indebtedness arose, and then specifies the amount found due from the defendant to the plaintiff, upon an accounting between them, respecting such dealings, * While it is true that the statement in this case fails to specify the times at which the horses were sold, or the money loaned, or what particular proportion of the debt arose from either transaction, yet such defects were held insufficient to invalidate the judgment in the cases of Freligh v. Brink (22 N. Y. 419) and Harrison v. Gibbons (71 id. 58) and these authorities are sufficient to sustain the judgment in this action."

*

*

Freligh v. Brink, DENIO, J., writing, held sufficient a statement that the indebtedness arose on a promissory note "that amount of money being had by the defendants of the plaintiff, and upon which.