New York County NyArchives Court.....Jaffray, Edward Vs. Josephine Saussman 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

EDWARD S. JAFFRAY and Others, Appellants, v. JOSEPHINE M. SAUSSMAN.

Application of MORITZ FREEDMAN and CHARLES I. FREEDMAN, Execution Creditors of 
JOSEPHINE M. SAUSSMAN, Respondents.

Judgment confessed for a sum, a part of which only is due — issuance of an 
execution with direction to levy for the whole amount — right of a junior 
judgment-creditor — Code of Civil Procedure, sec. 1277 — lien of the confessed 
judgment.

A debtor confessed judgment in favor of a creditor, on May 14, 1888, for 
$2,094.58, of which amount only $637.58 was due at that date, the balance not 
becoming due until July 6, 1888, and an execution was issued thereon to the 
sheriff directing him to levy and collect the whole amount of the judgment.

Another creditor of the same debtor having subsequently, on the same day, 
obtained by confession a judgment against him for $2,800, all of which was 
presently payable, moved to vacate and set aside the prior execution.

Held, that the court properly ordered an amendment of the execution issued upon 
the first judgment, so as to permit the sheriff to collect thereunder only the 
sum actually due on the judgment under which it was issued, at the time the 
judgment was confessed.

That the junior execution-creditor had a sufficient standing in court to enable 
him to insist upon the reduction, to the proper sum, of the amount to be 
collected under the prior execution.

The provisions of section 1277 of the Code of Civil Procedure, providing that 
where the whole amount of the confessed judgment is not due, and an execution is 
issued in the first instance only for a portion thereof, "the judgment shall 
remain as security for the sum or sums to become due after the execution is 
issued," does not make the judgment in the meantime a lien upon the personal 
property of the defendant as well as upon his real estate.

Such a judgment is security to just the same extent as any other judgment for 
the like amount would be upon which no execution has been issued.

Appeal by the plaintiffs from an order made at the New York Special Term, 
amending an execution, entered in the office of the clerk of the county of New 
York, June 11, 1888.

Isaac L. Miller, for the appellants. 

A. Blumenstiel, for the respondents. 

Bartlett, J. :

The defendant confessed judgment in favor of the plaintiffs for $2,094.58 on the 
14th day of May, 1888. Of this amount only the sum of $637.58 was due at that 
date. The balance did not become due before the 6th day of July, 1888. The 
plaintiffs' attorneys, however, on the day the judgment was confessed, issued an 
execution directing the sheriff to levy and collect the whole amount of the 
judgment. Subsequently, on the same day, the respondents, constituting the firm 
of Freedman Brothers, obtained a judgment, also by confession, against the 
defendant for $2,802.22, all of which was presently payable, and duly issued an 
execution thereon. They found their process preceded, however, by the execution 
which had been issued upon the confessed judgment in favor of the plaintiffs. 
The sheriff levied upon certain personal property belonging to the defendant and 
sold the same under and by virtue of both executions; and, thereupon, a motion 
was made in behalf of Freedman Brothers, the subsequent execution-creditors, who 
are the respondents on this appeal, to set aside the execution in favor of the 
plaintiffs so far as it affected their own execution. This motion was not 
granted in the form in which it was made, but the court at Special Term ordered 
an amendment of the plaintiffs' execution so as to permit the sheriff to collect 
thereon only the sum actually due to the plaintiffs at the time the judgment was 
confessed, together with costs. The moving parties, Freedman Brothers, appear to 
be satisfied with this order, but the plaintiffs have appealed.

As the questions presented by the appeal are of considerable practical 
importance, it may be well to quote in full section 1277 of the Code of Civil 
Procedure, under which they arise. That section is contained in the article 
entitled "Confession of Judgment," and provides as follows:

"Where the debt for which the judgment is rendered is not all due, execution may 
be issued upon the judgment for the collection of the sum which has become due. 
The execution must be in the form prescribed by law for an execution upon a 
judgment for the full amount recovered ; but the person whose name is subscribed 
to it must indorse thereupon a direction to the sheriff to collect only the sum 
due, stating the amount thereof, with interest thereon, and the costs of the 
judgment. Notwithstanding the issuing and collection of such an execution, the 
judgment shall remain as security for the sum or sums to become due after the 
execution is issued. When a further sum becomes due an execution may, in like 
manner, be issued for the collection thereof; and successive executions may be 
issued as further sums become due."

The execution issued upon the confessed judgment in favor of the appellants did 
not conform to the requirements of this section. The statement showed that only 
a portion of the sum for which the judgment was confessed was then due, but the 
indorsement on the execution directed the sheriff to collect the whole amount. 
If the defendant had objected to the execution by reason of the erroneous 
direction thus indorsed thereon, it is conceded that she would have been 
entitled to have it amended upon making a proper motion for that purpose, but 
the appellants contend that subsequent execution creditors have no standing in 
court to insist upon a reduction of the execution to the proper amount, and that 
none but the defendant can assert the right to have it reduced. On the contrary, 
I think that where an execution has been issued under section 1277 of the Code 
of Civil Procedure, but has been indorsed, in disregard of the provisions of 
that section, with a direction to the sheriff to collect more than the amount 
actually due, it is competent for a subsequent execution-creditor, in a direct 
proceeding for that purpose, as by motion, to attack the execution for 
invalidity so far as it directs the sheriff to collect anything in excess of the 
sum presently due on the prior judgment.

The personal property of the debtor does not become subject to the lien of 
either judgment until the issue of execution; and the subsequent execution-
creditor has a direct and manifest interest in preventing a prior execution-
creditor from acquiring a lien on the personal property which is larger than the 
law allows and which is likely to impair or defeat his own lien, as may well be 
the case where the estate is not sufficient to satisfy the claims of both 
creditors. 

Under such circumstances, the subsequent execution-creditor is plainly injured 
by the excess in the amount of the prior execution, and is affected by the error 
in such a manner as to give him the right to have it corrected.

The provision of the Code which permits a judgment to be confessed for money to 
become due at a future date (Code of Civil Pro., § 1273), constitutes an 
exception to the general rule that only such claims as are past or presently due 
can be put into judgment; and the rights of the creditor to whom a judgment is 
confessed for money not yet due should not be extended by construction. 
Referring to that part of section 1277, which provides that in a case where the 
whole amount of a confessed judgment is not due, and execution is issued in the 
first instance only for a portion thereof, "the judgment shall remain as 
security for the sum or sums becoming due after the execution is issued," the 
appellants argue that this provision makes the judgment a lien upon the personal 
property of the defendant in the meantime, as well as upon his real estate; I do 
not think so. The plain meaning seems to be that the judgment shall be security 
to just the same extent as any other judgment for a like amount would be upon 
which no execution had yet been issued. There is nothing in the language of the 
section which requires any other construction, or appears to warrant it. The 
Code says that the judgment shall remain as security, not the judgment and 
execution. If the contention of the plaintiffs is correct, that the privilege of 
objecting to an excessive execution under section 1277 is confined to the debtor 
who confesses the judgment, a curious result might follow. If the debtor chose 
to acquiesce in the form of the execution, he could allow his property to be 
sold thereunder and applied to the payment of a claim nine-tenths of which might 
not be due for a year to come, and in consequence of this proceeding a 
subsequent judgment-creditor, whose judgment had been recovered the same day 
upon a claim, presently payable, might find his execution returned nulla bona, 
because the goods of the defendant had been taken to satisfy a debt not yet due.
In Mr. Freeman's treatise on the Law of Executions is a note referring to 
numerous cases in which courts have disregarded variances between the amount of 
the judgment and the amount mentioned in the execution. (Freeman on Executions, 
§ 43). In none of these cases, all of which have been examined, is it held that 
the objection that the amount of an execution is excessive can be taken only by 
the defendant. Most of them uphold the doctrine that an execution which calls 
for too much money is not void, but merely voidable. (Peck v. Tiffany, 2 N. Y., 
451, 458; Hunt v. Loucks, 38 Cal., 372.) In the latter case, speaking of such an 
execution, the Supreme Court of California holds that it cannot be attacked 
collaterally by anybody or even directly by a stranger. But, as already 
intimated, a subsequent execution-creditor is not to be regarded as a stranger 
in interest. The appellants invoke the rule which is laid down so often in the 
books in various forms, to the effect that none but the defendant can take 
advantage of a defect in an execution which is amendable. (Abels v. Westervelt, 
15 Abb. Pr., 230; Wright v. Nostrand, 94 N. Y., 31, 47.) But the facts of the 
cases in which this rule has been applied must not be overlooked. No instance of 
its application as against a subsequent execution-creditor, where the amount of 
the prior execution was too large, has fallen under my notice. The rule has been 
held to be applicable in suits against sheriffs for an escape or a false return, 
where the fact that the execution was voidable has been pronounced unavailable 
as a defense. (Bissell v. Kip, 8 Johns., 88, 99; Bacon v. Cropsey, 7 N. Y., 
195.) It has also frequently been declared that the objection that an execution 
was issued sooner than the statute prescribed, or without proper proceedings to 
revive the judgment, could be taken only by the defendant. (Kimball v. Munger, 2 
Hill, 364; Pierce v. Alsqp, 3 Barb. Ch, 184, 190, 196.) In the cases cited to 
this effect, however, no question arose as to the debt being actually due, which 
was represented by the judgment and execution. The decisions merely affirmed the 
right of a debtor to waive a delay which he might have insisted on under the 
statute, and, to waive it irrespective of the wishes of third persons. But what 
the judgment-debtor has done in the case at bar is something very different from 
merely waiving a statutory delay in the collection of a demand conceded to be 
due. By acquiescing in the form of the execution which the appellants have 
issued, she has consented to apply her personal property to the liquidation of 
claims in behalf of the appellants, which will become due at a future time, to 
the exclusion or impairment of a claim in behalf of the respondents, which is 
due already. I do not think the provisions of the Code in relation to 
confessions of judgment were designed to be employed by debtors for such a 
purpose; and in the case at bar its accomplishment was properly prevented at the 
instance of the parties who were directly liable to injury therefrom, by 
granting their motion to the extent of reducing the execution to the amount 
actually due on the appellants' judgment at the time it was issued.

The order appealed from should be affirmed, with costs and disbursements.

Van Brunt, P. J., and Daniels, J., concurred.

Order affirmed, with costs and disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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