Trier v. . Herman

21 N.E. 1034, 115 N.Y. 163, 24 N.Y. St. Rep. 552, 70 Sickels 163, 1889 N.Y. LEXIS 1193

Opinion

Earl. J.

A creditor may obtain a judgment against his *' debtor in either one of three ways: (1.) He may serve a sum'mons in an action and take judgment after a trial or by default, ‘and he must pursue the regular practice to that end. (2.) He may serve a summons and complaint and obtain an offer of judgment from the defendant, and upon that enter judgment under section 738 of the Code; and if he adopts that course, he must pursue the practice prescribed; or (3), he may obtain a judgment by confession m the manner provided in sections 1273, etc., of the Code. He has the statutory right to pursue either of these methods. He may pursue one for the express purpose of avoiding the others, because the statute gives him the absolute choice. If his practice is regular and his claim and proceedings are honest and bona fide, no court will deprive him of the advantage his judgment will give him. He cannot compel his debtor to give a confession of judgment, and if he‘ cannot obtain one, he must pursue one of the other methods.

Here there is no claim that defendants’ practice was irregular, or that the debt for which judgment was taken was not actually due, or that there was any fraud or bad faith practiced upon anyone.

This case is unlike that of White v. Gotzhausen (129 U. S. 329), becaúse in that case there was but one statute regulating the matter, and that was violated; and it is more like the case of Beards v. Wheeler (11 Hun, 539; 76 N. Y. 213.)

For these reasons, and those expressed more at large in the opinion of the General Term, the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.