Gambar halaman

App. Div.]


there is this day due," etc. The learned writer said: "It would be hypercritical to hold this not to be a statement that the note was given for so much money that the defendants had received of the plaintiff, and when it is added that the sum for which the judgment was confessed, which is less than the amount of the note and interest thereon, is justly due from the debtors to the creditor, it is sufficiently shown that the money was had by the debtors under a contract to repay it with interest. This shows it to have been money borrowed by the parties who gave the note."

In the other case cited (Harrison v. Gibbons) the court, ANDREWS, J., writing, reversed a judgment which held bad a confession in which the statement was that the defendant before a long absence from the State," had obtained groceries, provisions, crockery, money, flour, etc., to the amount of $1,109.41, including interest, of John Owens, who has duly assigned the same to said Harrison; that since his return to said Brockport he has incurred a debt to said Harrison amounting to the sum of $92.28, being for groceries, provisions furnished by said Harrison for the use of his family; that there is now justly due and owing said Harrison, over and above all effects and payments, the sum of $1,207.69."

It seems to me that the statements under consideration in the last three decisions were far more open to criticism than is the one in the case at bar, and I cannot see that the statement here is not as full as that in the Broistedt case which intermingles loans of money and purchases of horses. True, the Broïstedt case alleges that there was an accounting of their dealings, but an allegation of "an accounting" is not equivalent to an allegation of an account stated, which was the point upon which the court in the Critten case held the confession sufficient.

In the Encyclopædia of Pleading and Practice (Vol. 1, p. 88) it is said: "To enable one to recover as upon an 'account stated' he must declare upon it as such," although no citation of New York authorities is made.

The question here seems to be whether the statement meets the language of Wood v. Mitchell (supra): "The concise statement of facts out of which the indebtedness arose is required so that any party interested may be able to investigate the matters and thus ascertain whether the confession of judgment was accurate, honest

[ocr errors]


[Vol. 38.

and bona fide. It may also be supposed that it was the purpose of the Legislature that the statement of facts should be so definite that the affiant would be exposed to punishment for perjury in case of any misstatement. This statement is in the highest degree indefinite. The moneys are alleged to have been loaned at various times during a period of nearly two years. There is absolutely no information as to the amount of the loans. They may have amounted to $10,000 or $100,000, the indebtedness having been reduced by payments or offsets to less than $5,000. No dates of the loans are given, and it is not stated how much of the $5,000 was for interest and how much for principal. The statement should, at least, have stated the interest and principal separately, or have given the data from which the amounts of the two items could be ascertained."

In the first place it is to be observed that section 1274 of the Code of Civil Procedure requires that a confession of judgment "must state concisely the facts out of which the debt arose." Turning to section 481 we find that a complaint must contain "a plain and concise statement of the facts constituting each cause of action." I know of no reason why, under these two sections, anything more is required in a confession than is required in a complaint. If the statement in this confession had formed the allegations of a complaint, can it be said that it would have been demurrable? It alleges not only a loan, but notes given in consideration thereof. A complaint under section 534 may set forth a copy of a note and allege that there is due thereon a specified sum. What reason is there why a confessor of judgment should be bound to a more specific statement than is required in a complaint? I think that the present statement "states concisely the facts out of which the debt arose," in full compliance with the requirements of section 534.

But let us refer to the requirements of the opinion in Wood v. Mitchell (supra). There seems to me to be a "concise statement of facts out of which the indebtedness arose." Section 1274 requires only "a concise" (not a detailed) "statement of the facts out of which the debt arose." It would seem that a person interested could just as easily ascertain from the statement in question whether the "judgment was accurate, honest and bona fide," as he could in the Broistedt case, where the statement was that the defendant at different times had borrowed money and purchased horses of the

App. Div.]


plaintiff, and that "on an accounting of their dealings together this day there was found to be due," etc. The present statement has an equivalent in the allegation of the giving of notes and the setting out of a copy of such notes.

The next suggestion in the opinion is that the defendant must be exposed to punishment for perjury in case of any misstatement. Certainly, if the defendant had not borrowed money and there was not due "the sum of forty-two hundred dollars ($4,200) for cash borrowed and interest thereon for which plaintiff holds" the two promissory notes, he could be indicted for perjury, just as certainly as if he had stated the date and the amount of each loan. The court also said that there was no information as to amount of principal and amount of interest. But it is to be noticed in the case at bar that the confession is simply for the principal of the notes, without interest, so that it is not open to the last criticism. The only other fault dealt with in Wood v. Mitchell (supra) was that the confession did not state the amount of the loans and whether there had been payments or offsets. I think this is met in the present case by the setting out of the notes, which is just as much an accounting as anything can be short of a technical account stated.

Recurring once more to Wood v. Mitchell, the statement reads as follows: "This confession of judgment is for a debt now justly due to the said plaintiff from me arising from the following facts, viz., the said sum of $5,000 is a balance due to said plaintiff of various sums of money loaned and advanced by him to me, the said defendant, during a period from about July 1, 1886, to date, and includes interest upon such loans and advances to this date."

It is evident that this statement is not as particular as the statement in the case at bar.

After a careful comparison of the authorities, and on the authority of Freligh v. Brink, Harrison v. Gibbons, and Broistedt v. Breslin, we are of the opinion that the confession of judgment in the present case complies with the requirements of section 1274 of the Code of Civil Procedure, and that the order should be reversed.

All concurred.

Orders reversed and motions denied, with ten dollars costs and disbursements on appeal, and ten dollars costs of motion in one case.


38 38




[Vol. 38.

ANNA CARLSON, as Administratrix, etc., of FRANZ LUDWIG CARLSON,
Deceased, Appellant, v. THE MONITOR IRON WORKS, Respondent.

·Negligence — injury from flanges projecting from a tumbler in which castings are


A person who for ten years had been employed as a molder's laborer in a foundry, and for eight or nine days in the milling room of the foundry, where his duties consisted in placing castings in tumblers, from the sides of which wedges, flanges and rivets projected (which projections were obvious), assumes the risk incident to their existence, and in the event of his being killed by being caught by the tumblers, his employer is not liable to his administratrix for the damages resulting from his death.

APPEAL by the plaintiff, Anna Carlson, as administratrix, etc., of Franz Ludwig Carlson, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 13th day of December, 1897, upon the dismissal of the complaint at the close of the plaintiff's evidence by direction of the court after a trial at the Westchester Trial Term.

Smith Lent, for the appellant.

W. Popham Platt, for the respondent.


In March, 1897, the plaintiff's intestate, while working in the defendant's foundry at Sing Sing, received injuries from which he died. This action was brought to recover damages for his death, and at the trial, upon the close of the plaintiff's evidence, the complaint was dismissed. From the judgment entered thereon the plaintiff appeals.

Carlson, the intestate, had been employed for ten years as a molder's helper in the foundry of the defendant at Sing Sing. For eight or nine days before the accident which caused his death he had been transferred to work in connection with the milling room, the place of the accident. In this room there were five mills or tumblers, in a continuous line, into which "sprews" or pipe castings, as they came from casting, were placed for cleaning purposes. Each tumbler was about five feet in length and four in diameter, and was


App. Div.] fitted with folding doors on the side, one part opening up and the other down, which, when closed, were fastened with an iron strap or hasp and a wooden wedge to hold them securely. The wedge projected an inch or an inch and a half. There were also flanges and rivet heads on the side, projecting an inch or two from the staves or body of the tumblers. The latter were used to clean the pipes by attrition, and were made to revolve on an axis by shafting and wheels placed behind them. In front of them, and about two or three feet distant, was a railroad track, running parallel with the line of the tumblers and used for trucks upon which the pipe castings were brought to the tumblers. It was a part of Carlson's duty to unload the pipes, put them in the tumblers and fasten the doors. While in the act of lifting a pipe from a truck Carlson slipped or stumbled, was thrown against one of the tumblers, which was revolving, was caught in some way and thrown over it and wedged in between it and the shafting on the other side, and thus received the injuries which resulted in his death.

There was evidence that, about two years before this accident, the clothing of another person was caught in some part of a tumbler and that he was thrown over it upon the shafting; and that the clothing also of other workmen had been caught on projections of the tumblers.

There was also evidence to show that these flanges, rivets and wedges were "obvious to anybody's sight." The defendant moved to dismiss the complaint upon the ground that Carlson had been in the foundry for many years and was familiar with the machinery, and that whatever risks there were were obvious to him, and that he assumed these risks in his employment. The court granted the motion over the plaintiff's exception.

It is decided by a long line of cases that where a servant enters upon employment he assumes the usual risks and perils of the service, and also those risks and perils incident to the use of machinery, which are apparent to ordinary observation; and that he cannot call upon the master to make alterations to secure greater safety, or, in case of injury, call upon him for indemnity. (Gibson v. Erie Railway Co., 63 N. Y. 449; De Forest v. Jewett, 88 id. 264; Appel v. B., N. Y. & P. R. Co., 111 id. 550; Kaare v. T. S. & I. Co., 139 id. 369; Knisley v. Pratt, 148 id. 372.)

« SebelumnyaLanjutkan »