Wild v. Porter

This case was decided solely upon the ground that the judgment under which defendant justified the levy complained of was utterly void. The question as to whether the plaintiff had, in fact, taken possession of the property before the levy, was not considered by the court or the jury. Nor were the questions whether tieorge Cornell was a creditor of Aylesworth, the mortgagor, prior to the confession of this judgment, and, if so, how long he had been such; nor whether the indebtedness for which the judgment was confessed had existed against Aylesworth prior to his default in the payment of the mortgage, or the taking possession of the property by the mortgagee,—at all considered or discussed by either party upon the trial. The whole case turned upon the construction and effect which the trial court gave to the confession of judgment, and, inasmuch as we have reached the conclusion that such confession was sufficient, we think a new trial should be granted, without discussing the condition of the case, upon the theory that such judgment is a valid one.

The confession of judgment in this case contains, in substance, the statement that prior to November 26, 1894, W. D. Aylesworth was indebted to Mary M. Aylesworth for money loaned him by her, and for interest accrued thereon; that on such date they settled and ad*1038justed the amount due, and fixed it at the sum of $250, for which W. D. Aylesworth gave his note, bearing date on that day, and payable to her order, with interest. A copy of the note is also set forth, and the further statement that, prior to the confession, such note had been, for value received, transferred by Mary M. Aylesworth to Cornell. Without attempting to analyze and reconcile the various decisions upon this subject, it is sufficient to say that within the case of Critten v. Vredenburgh, decided by this court, and reported in 4 App. Div. 216, 38 N. Y. Supp. 542, and affirmed in 151 N. Y. 536, 45 N. E. 952, the above confession is clearly sufficient. The trial court therefore erred in holding it insufficient and the judgment void.

For the reasons above stated, the judgment and order appealed from must be reversed, and a new trial granted; costs to abide the event. All concur.