Freligh v. . Brink

22 N.Y. 418

• Court: New York Court of Appeals
• Decided: December 5, 1860
• Status: Published

Opinion

Denio, J.

The Code requires these statements, where the judgment is for money already due, “ to state concisely the facts out of which ” the debt “ arose,” and to show that the sum for which the judgment was confessed is justly due. (§ 383.) The cases which have been decided here, upon this section, establish that it is not sufficient merely to set out a promissory note given by the debtor to the creditor, with an allegation that the amount of it is justly due (Chappel v. Chappel, 2 Kern., 215); that it is no better if, besides setting out a note, it add that it was given upon a settlement between the creditor and the debtor. (Dunham, v. Waterman, 17 N. Y., 9.) But in a case where it was stated that the note which was set out was given for borrowed money, the statement was held sufficient and the judgment valid. (Lanning v. Carpenter, 20 id., 447.) I am of opinion that the statement in the present instance was sufficient, according to the judgment in the last mentioned case. The note is set out with all necessary particularity as to parties, date and amount, and it is added, “ that amount of money being had by the defendants of the plaintiff.” 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 and confessed the judgment to the payee of the note, who is plaintiff in that judgment; for the advancing of money by one party to another, to be repaid at a future time, is a good definition of the contract of lending. The case is, therefore, covered by the last decision; and the order of the general term must be affirmed.

All the judges concurring,

Judgment affirmed.