Wood v. Mitchell

6 N.Y.S. 232, 3 Silv. Sup. 346, 60 N.Y. Sup. Ct. 451, 25 N.Y. St. Rep. 147, 53 Hun 451, 1889 N.Y. Misc. LEXIS 515

• Court: New York Supreme Court
• Decided: July 9, 1889
• Status: Published

Opinions

Van Brunt, P. J.

We cannot concur in the conclusion to which Mr. Justice Macomber has arrived in this case: It is not necessary to determine whether, under any circumstances, a confession of judgment might or might not be entered in favor of an infant, or whether the appointment of a guardian ad litem, nune pro tune, six months after the entry of the judgment, in any way altered the status of the judgment. It is, however, clear that the plaintiff in the confession might accept or reject the same, more especially in a ease such as the one at bar, where the acceptance of the confession would work a waiver of a tort which the plaintiff in the confession had suffered at the hands of the defendant in the confession. The result would be that, in the case of an infant, a person who had become liable on a tort to an infant might confess a judgment in favor of the infant as upon a contract, and place this judgment in the way of other creditors pursuing their remedies against his property, which .judgment the infant plaintiff could repudiate upon attaining his majority. Such results should* not be permitted unless the law expressly authorizes them, and, as no such inference is to be drawn in favor of confessions for liabilities arising under circumstances such as the one under consideration, the motion to set aside the confession in the case at bar should have been granted. The order should be reversed, with $10 costs and disbursements, and the motion granted.

Bartlett, J., concurs.