148.

106 N. Y. 467.

acts of Congress relating to bankruptcy, he may apply, upon 62 How. Pr. proof of his discharge, to the court in which a judgment was 452; Id. 506. rendered against him, for an order, directing the judgment 91 N. Y. 171. to be cancelled and discharged of record. If it appears that 6 Civ. Pro, he has been discharged from the payment of that judgment, an order must be made accordingly; and thereupon the clerk must cancel and discharge the docket thereof, as if the proper satisfaction-piece of the judgment was filed. Notice of the application, accompanied with copies of the papers upon which it is made, must be given to the judgment creditor, unless his written consent to the granting of the order, with satisfactory proof of the execution thereof, and, if he is not the party in whose favor the judgment was rendered, that he is the owner thereof, is presented to the court, upon the application.

§ 1269. A court of record has the same power and jurisdiction, concerning the docket of its judginents, kept by a county clerk, which it has concerning the docket, kept by its own clerk. It may direct that such a docket be amended; or that its judgment, there docketed, be docketed nunc pro

tunc.

1270. Upon the presentation, to the clerk of a court of record, of an assignment of a judgment, entered in his office, executed by a person entitled to satisfy the judgment, as prescribed in section one thousand two hundred and sixty of this act, and otherwise executed as prescribed in that section, with respect to a satisfaction-piece, and upon payment of the fees, allowed by law, for filing a transcript, and docketing a judgment thereupon, the clerk must forthwith file the assignment in his office, and make, upon the docket of the judgment, an entry of the fact, and of the day of filing; or, if he keeps a separate book for the entry of assignments of judgments, an entry, referring to the page of the book, where the filing of the assignment is noted.

§ 1271. [Repealed 1879.1

§ 1272 This article applies only to a judgment wholly or partly for a sum of money, or directing the payment of a sum of money; and to an execution issued upon such a judgment.

TITLE II.

Judgments taken without process.

ARTICLE 1. Confession of judgment.

2. Submission of a controversy, upon facts admitted.

§ 1273. [Am'd 1877.] A judgment by confession may be entered, without action, either for money due or to become due, or to secure a person against contingent liability in behalf of the defendant, or both, as prescribed in this article. A married woman may confess such a judgment if the debt was contracted for the benefit of her separate estate, or in

27 Hun, 601.

the course of any trade or other business, carried on by her on her sole and separate account.

§ 1274. A written statement must be made and signed

128 N. Y. 387. by the defendant, to the following effect:

681.

1. It must state the sum, for which judgment may be en tered, and authorize the entry of judgment therefor.

2. If the judgment to be confessed is for money due or to 5 N.Y.Supp. become due, it must state concisely the facts, out of which the debt arose; and must show, that the sum confessed therefor is justly due, or to become due.

117 N.Y. 439.

52 Hun, 561.

3. If the judgment to be confessed is for the purpose of securing the plaintiff, against a contingent liability, it must state concisely the facts, constituting the liability; and must show, that the sum confessed therefor does not exceed the amount of the liability.

The statement must be verified by the oath of the defendant, to the effect, that the matters of fact therein set forth are true.

§ 1275. At any time within three years after the statement is verified, it may be filed with a county clerk, or with the clerk of a superior city court, or, where the sum, for which judgment is confessed, does not exceed two thousand dollars, exclusive of interest from the time of making the statement, with the clerk of the marine court of the city of New York. Thereupon the clerk must enter, in like manner as a judgment is entered in an action, a judgment for the sum confessed, with costs, which he must tax, to the amount of fifteen dollars, besides disbursements taxable in an action. If the statement is filed with a county clerk, the judgment must be entered in the supreme court; if it is filed with the clerk of another court, specified in this section, the judgment must be entered in the court of which he is clerk. But a judgment shall not be entered upon such a statement, after the defendant's death.

§ 1276. [Am'd 1879.] The clerk, immediately after entering the judgment, must attach togather* and file the statement, as verified, and a copy of the judgment, which constitute the judgment-roll. The judgment may be docketed, and enforced against property, in the same manner, and with the same effect, as a judgment in an action, rendered in the same court; and each provision of law, relating to a judgment in an action, and the proceedings subsequent thereto, apply to a judgment thus taken.

§ 1277. 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 execu tion 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.

*So in original.

1280 be case, subcosse, and affidavit, must be led in the office of the chers of the court, to which the submission K is made. If the surcousin is made to the sapremo AMET, they must be died in the office of the county Clerk, if any, specified in the subcussion: no county clerk is so spyvities, they may be fled in the office of any county clerk. The it ing is a presentation of the submission; and thenceforth the controversy becomes an action; and each provision of law, relating to a proceeding in an action, applies to the subse quent proceedings therein, except as otherwise prescribed i the next section.

1281. An order of arrest, an injunction, or a warrant of attachment, cannot be granted in such an action; the osta thereof are always in the discretion of the court, but costs cannot be taxed, for any proceedings before notice of trial; the action must be tried by the court, upon the case alone? and the case, submission, affidavit, and a certified copy of the judgment, and of any order or paper, necessarily affecting the judgment, constitute the judgment-roll. If the action is in the supreme court, a superior city court, or the marina court of the city of New York, it must be tried, and judgment rendered at the general term. If the statement of facts contained in the case, is not sufficient to enable the court to render judgment, an order must be made dismissing the submission, without costs to either party; unless the court permits the parties, or, in a proper case, their representatives, to file an additional statement, which it may do, in its discretion, without prejudice to the original statement.

TITLE III.

Vacating or setting aside a judgment, for irregularity or error in fact.

1282. Motion to set aside judg

ment for irregularity;
when it may be heard.

21283.

Motion to set aside Judg

ment for error in fact; when it may be made by party.

13.

112 NY.44 13 N.Y. 28.

8.X. Y. 362 1282. A motion to set aside a final judgment, for ir regularity, shall not be beard, after the expiration of one 43.Y-Supp. year since the ning of the judgment-roll; unless notice there of is given for a day within the year, and either the hearing is adjourned by one or more orders until after the expiration of the year: or the term, for which it is thus noticed, is not held. In the latter event, the motion may be re-noticed for, and heard at, the next term at which it can be made, held not less than ten days after the day, when the first term was ap pointed to be held.

78. N. Y. 302.

120.

1283. A motion to set aside a final judgment, rendered 3N.Y. Supp. in a court of record, for error in fact, not arising upon the trial, may be made by the party against whom it is rendered; or, if an execution has not been issued thereon, and the judgment has not been wholly or partly satisfied or enforced, by the party in whose favor it is rendered.

1284. A like motion may be made, after the death of a party entitled to make it, as prescribed in the last section, by the following persons:

1. Where the judgment awards a sum of money, or a chattel, or an interest in real property, which is declared by law to be assets, the motion may be made by his executor or administrator.

2. Where the judgment awards real property, or the possession thereof, or where the title to or an estate or interest in real property is determined or affected thereby, the motion may be inade by the heir of the decedent, to whom the real property descended, or might have descended, or by the person to whom he devised it.

3. Where the judgment is rendered against or in favor of two or more persons, the motion may be made, jointly, by the survivor, and the person who would have been entitled to make it, if the judgment had been rendered in favor of or against the decedent only.

§ 1285. A motion may be made, either before or after the death of the defendant, by a person, who is not a party, to set aside, for error in fact, not arising upon the trial, a judgment, rendered in an action against a tenant for life, or for years, awarding real property, or the possession of real property, in which the person making the motion has an estate, or interest, in reversion or remainder.

§ 1286. Where two or more persons are entitled to move to set aside a judgment, as prescribed in the last three sections, one or more of them may move separately; but, in that case, notice of the motion must be given to those who do not join therein, in like manner as if they were adverse parties.

$1287. Notice of a motion to set aside a final judgment, for error in fact, not arising upon the trial, must be given to the adverse party, or, in case of his death, to each person who might have moved, as against the moving party, to set aside

m

the judgment for the same cause 24 spawned a trade
Where the motion is made by the pan wait
judgment is rendered, or by his beun deuses

ministrator, service of the notion, upon the atten

for the party, in whose favor the jitment is readeret, and the like effect, as if it was served upon the party

§ 1288. Where the judgment avants mea, prenemy ce the possession thereof, or where the title to.

interest in, real property is determined or affected tremene.
and the real property, or estate, or interest, therein, has seen
conveyed, by the adverse party, more than sms data set re
the hearing of the motion, notice of the moten muut v
given to each actual occupant of the property, cia anal wher
the conveyance.

§ 1289. Notice must be given, in a case open led's the title, by personal service of a written notice, spot an order to show cause why the motion should not be granted, or if a person entitled to notice cannot, wit de dilzence, be found within the State, in any manner which the mur

thereof, directs in an order to show cause, or which the cours directs in a subsequent order.

2. N. Yups.

§ 1290. A motion to set aside a final judgment for error TENY.ML in fact, not arising upon the trial, shall not be beard, except 2 B645 477 as specified in the next section, after the expiration of two 25 #15 204 years since the filing of the judgment-roll, unless notice there. of is given, for a day within the two years; and either the hearing is adjourned, by one or more orders, until after the expiration of the two years; or the term, for which it is thus noticed, is not held. In the latter event, the motion may be re-noticed for, and heard at, the next term at which it can be made, held not less than ten days after the day, when the first term was appointed to be held.

§ 1291. If the person against whom the judgment is rendered, is, at the time of filing the judgment-roil, either 1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in execution, upon conviction of a criminal offence, for a term less than for life; The time of such a disability is not a part of the time, limited by the last section; except that the time within which the motion may be heard, cannot be extended more than five years by such a disability nor, in any case, more than one year after the disability ceases.

136 N.X.287.

§ 1292. Where a judgment is set aside for any cause, 132 N.Y. 363. upon motion, the court may direct and enforce restitution, in

like manner, with like effect, and subject to the same condi

tions, as where a judgment is reversed upon appeal.