LYON a. SHERMAN

LYON a. SHERMAN. Supreme Courts First District; At Chambers, May, 1862. Judgment on Confession.—Sufficiency of Statement. An averment in a statement for judgment on confession, that the indebtedness arose for money loaned and advanced by the plaintiff to the defendant at a time mentioned, including interest thereon to date, is a sufficient statement of the facts out of which the indebtedness arose. Motion to vacate three judgments entered on confession. On the 22d of Hovember, 1861, three judgments were entered in the Supreme Court against Austin Sherman on confession. The first judgment was in favor of Ephraim Lyon, for $3,471.42. The confession, after setting forth the usual formal averments, was : “ The said sum of $3,471.42 is the balance due the said plaintiff of various sums of money lent and advanced by him to the said defendant during the last three years, and includes interest upon such loans and advances to this date.” The second judgment was in favor of Harriet Tuttle, for $1,560.55. The facts were alleged as follows : “ The said sum of $1,560.55 is the balance now due from said defendant to said plaintiff upon a loan of $1,700 which was made by said plaintiff to the said defendant about twenty-two months ago, and includes interest to this date.” The third judgment was in favor of William D. Ludlow, for $3,410.12. The facts were set out as follows : “ The said plaintiff has from time to time during the last eighteen months lent and advanced various sums of money to this defendant at his request, the amount of which loans, with interest to this date, is $3,410.12, above mentioned.” This motion was made by Joseph F. Daly, a judgment-creditor of Sherman for $429.23, upon copies of these judgments and an affidavit setting forth various facts having a tendency to show collusion between these judgment-creditors and the defendant. S. W. & R. B. Roosevelt, for the motion. Charles W. Sandford, opposed. [MAJORITY — Barnard, J.] Barnard, J. According to the cases of Claflin a. Sanger (11 Abbotts' Pr., 338; S. C. at Chambers, 31 Barb., 36), Moody, a. Townsend (3 Abbotts’ Pr., 375), and Davis a. Morris (21 Barb., 152), all decided by the Supreme Court of this district, the confessions of judgment in these actions are insufficient. But, I think, the cases of Freligh a. Brink (22 N. Y., 418), and Banning a. Carpenter (20 Ib., 447), have overruled the above cases in this district. The principle in the above two cited cases in the Court of Appeals will sustain the judgments in these actions. Motion denied, with $10 costs. The case of Freligh a. Brink, 22 N. Y., 418, reverses S. C., 30 Barb., 144, and 16 How. Pr., 272 ; and affirms S. C., 18 How. Pr., 89.