down the door over a certain shaft or elevator way." This statement by counsel is not correct. The complaint does not contain such an allegation, but it adds to it the allegation "and the negligent and improper construction, management and operation of said elevator thereat by defendants." The allegation that plaintiff's intestate was killed by reason of the negligent and imperfect construction, management and operation of the elevator, is not particular enough. In what respect was the elevator negligently and improperly constructed? In what respect was it negligently and improperly managed and operated? Or, rather, in what respects does plaintiff expect to prove that the elevator was negligently and improperly constructed, managed and operated, is a question that plaintiff should answer before defendants are brought to trial. Lahey v Kortright, 55 Supr. Ct., 156; 12 N. Y. State Rep., 71.

If plaintiff cannot show in what respects she expects to prove that defendants were negligent, she cannot recover in this action. The mere happening of the accident does not place upon the de-ndants the burden of showing that it did not happen through their negligence.

Order reversed, with costs, and plaintiff ordered to furnish within ten days from the service of a copy of this order a bill of particulars showing in what respect the elevator mentioned in the complaint was negligently or improperly constructed, managed or operated, with ten dollars costs to the defendant to abide the event of this action.

FREEDMAN, J., concurs.

THE BERLIN IRON BRIDGE CO., Pl'ff, v. JOSEPH B. WAGNER, Highway Commissioner, Def't.

(Supreme Court, General Term, Third Department, Filed May 26, 1890.)

SUBMISSION OF CONTROVERSY.

Defendant entered into contract with plaintiff for the building of a bridge in pursuance of a resolution of town meeting to raise money for that purpose. The board of supervisors had passed a law authorizing the bonding of the town and appointed commissioners to construct the bridge. This submission was made to determine the liability of defendant under his contract. Held, that the attorney-general not being a party to the submission had no standing in court in the matter and that the court would not on his motion dismiss the submission.

MOTION to dismiss submission of controversy.

The electors of the town of Oswegatchie at a special town eeting held November 2, 1889, pursuant to notice voted to raise $10000 for the purpose of building a bridge in said town. NoTeaber 21, 1889, the board of supervisors passed a law to authorize said town to borrow said amount for the purpose of building said bridge and issue bonds therefor and appointing commissionNovember 29, 1889, defendant as sole Highway commissioner of said town entered into a contract with pintiff to construct the bridge for $9,200, to be payable oneLalf when the material was delivered and the balance on compleand acceptance of the bridge. The material has been deliv

Ps to construct the same.

ered. The commissioners are acting and claim the right to contract for and superintend the building of the bridge.

Isaac H. Maynard, for motion; A. D. Wales and George R. Malby, opposed.

LEARNED, P. J.-This is a submission without action.

The attorney-general, who is not a party to the submission, moves the court to dismiss the case on the ground that it is a collusive submission and that it is intended to establish the right of defendant to make a contract for the building of the bridge. The attorney-general alleges that certain commissioners appointed by the supervisors claim the right to make the contract and claim that the defendant above-named is not authorized to contract. The attorney-general urges that these commissioners are not parties to this submission; that there is really no controversy be tween those who are parties thereto and that a decision between them may be a precedent which will control the question of right whenever it may be raised by the commissioners aforesaid. It has also appeared in the course of the argument that those commission. ers have made a contract with another company for the building of the bridge.

The parties to this submission on the contrary assert that it was made in good faith and with a desire to ascertain their own rights; and that they have offered in several ways to permit the said commissioners to take part herein.

We do not think that we can, on the motion of the attorney general, refuse to hear this case. He has no standing in court, and, far as we see, would have none even if the said commission. ers had a right to interfere. They have taken no steps to bring themselves into this controversy, directly or indirectly.

The plaintiff above-named could have sued the defendant on the contract, and to such an action those commissioners need not have been parties. This submission is but a substitute for an action, in order that the decision be more expeditious.

As to the effect of a decision on the alleged rights of the said commissioners, we have nothing to say. They are not parties or privies, and generally none but parties and privies are bound by a decision.

We decline to dismiss the submission, or to refuse to hear the argument.

LANDON and MAYHAM, JJ., concur.

AMBROSE W. ADAM3, as Constable, Resp't, v. JOHN H. TATOR,

App'lt.

(Supreme Court, General Term, Third Department, Filed July 7, 1890.)

1. JUSTICE'S COURT-CONFESSION OF JUDGMENT.

A judgment on confession for a contingent liability is not authorized in justices' courts.

2. SAME.

A confession of judgment stated no facts or cause of action, but it appeared that the indebtedness included three notes on which plaintiff was surety

for defendant, and which were not yet due, but plaintiff agreed to pay them. Held, that defendant was not indebted to plaintiff in the amount of such notes, and that the judgment entered upon such confession could not be sustained.

APPEAL from judgment in favor of plaintiff entered upon verdict for $698.05, and from order denying a new trial.

Wm. C. Lamont and N. C. Moak, for appl't; Hobart Krum, for respt

LEARNED, P. J.-This is an action to recover damages for taking personal property. The plaintiff recovered and defendant appeals. The plaintiff was in possession of the property by virtue of executions issued on two judgments recovered by one Mickle against one King on confession March 10, 1885, before a justice of the prace; one for $500, the other for $200. The defendant took the roperty by virtue of a chattel mortgage, executed to him by King December 30, 1884, and not filed until March 14, 1885. On the first trial it was urged that plaintiff was not a constable. point was disposed of when the case was here before, 42 Hun, 384; 6 N. Y. State Rep., 359, and will not be again consid

That

The principal questions now are as to the validity of the judgments, and the regularity of the executions. It is urged that the confessions of judgment were in fact fraudulent; and also that the justice had no authority to take a confession of judgment given, in fact, to secure contingent liabilities. In form the confessions authorize a judgment, but they state no facts of any kind, and show no cause of action. It is further claimed by the defendant that the affidavit attached to each confession is defective. On the trial it appeared that the alleged indebtedness for which these judgments were confessed was made up as follows: 1. A joint and several note made by King and Mickle, dated October 30, 1884, for $400, at one year, held by a bank at Middeburgh when the confession was given. As between the partes Mickle was surety for King, who received the avails.

2. A promissory note made by King and Mickle, dated March 11, 1884, for $19 and interest, at one year, held by George D. Brayman, on which Mickle was in fact surety.

A promissory note made by King and Mickle, dated March 13, 1884, for $68.40 and interest, at ten months, held by Mrs. Foland, on which, also, Mickle was in fact surety.

An indebtedness on book account of about $64.37, and perhays borrowed money $130.

There is evidence to the effect that just before the confessions Mickle and King looked over their affairs, and that there were found abilities to over $700, including these notes; that they agreed to call the amount $700; that Mickle agreed to pay the notes if Kng would give the security, and that on this arrangement the

judgments were confessed.

Cal

It is evident that the notes above mentioned formed the prin part of the indebtedness for which the judgments were conThe learned justice who tried the case expressed some doubt on the question of the confession of these judgments for a N. Y. STATE REP., VOL. XXXII

16

contingent liability, but decided to hold the judgments good in that respect.

Section 2864 gives a justice of the peace jurisdiction to enter confession of judgments as prescribed in title 6 of chapter 19.

Sections 3010, 3011 prescribe the mode, and are substantially like the provisions of the Revised Statutes. The third subdivision of the latter section requires that, when the judgment exceeds fifty dollars, there must be an affidavit of the parties, "stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein over and above all just demands which the defendant has against the plaintiff." The argument of the defendant is that King was not indebted to Mickle at the time of the confession upon the notes; nor even upon Mickle's agreement to pay them, though he might become so indebted when Mickle paid. It is worthy of notice in considering this question that in regard to confessions in courts of record the Code is precise and clear. It gives express authority to confess for a contingent liability and requires a verified statement of the facts constituting such liability. Sections 1273, 1274; see Flour City National Bank v. Doty, 41 Hun, 76; 2 N. Y. State Rep., 336. And some inference may be drawn therefrom that, if confessions of judgment in justice's court were authorized for contingent liability, a similar provision would have been made for a statement of facts.

In the present case the confession states no facts whatever. It does not show for what cause of action the judgment is to be entered; whether for assault and battery, for damages in taking a chattel, for money loaned, for goods sold. It only authorizes a judgment for a certain amount on no cause of action whatever. We have doubts whether such is the proceeding authorized by the Code. A "confession" means ordinarily the acknowledgment of some facts; and it is reasonable that facts should be stated, at least as fully as would be done in a complaint in the same court. This might be quite important in order to show the nature of the execution to be issued. Section 3026.

But passing this, we come to the question as to the contingent liability. It is certain that at the time of the entry of the judgments King was indebted on the notes, not to Mickle, but to the holders. A principal is not indebted to the surety until the surety has paid the debt. Even though Mickle, in consideration of the giving these judgments, had agreed to pay the debt, still it could not be said that King was indebted to Mickle for these notes at the time when the judgments were given. Whether Mickle would pay them or not was uncertain. If he paid them King would owe him; if he did not, King would not owe him. All was contingent. This is not saying that it would not be a lawful arrangement for King to secure Mickle on receiving such a promise. We are only examining whether the language required in the affidavit, viz. that the defendant is justly and honestly indebted to plaintiff in the sum specified, can be construed to comprehend such an arrangement. Mickle was already liable on these notes. He assumed no new obligation. He simply obtained a judgment against King before paying the

notes, which he would have been able to recover after paying them. Only after he had paid them King would have become indebted to him; before, King was not. When, then, the Code requires such an affidavit, it shows that there must be an existing debt to the plaintiff. Probably the debt need not be yet payable. For that case a stay of execution is provided. Sec. 3010. But the defendant must owe the plaintiff. Debitum in praesenti solvendum in futuro. Debt existed in the present case, but not to this plaintiff, that is, as to the three notes. Smith v. Krauskopf, 13 Hun, 526, and cases cited.

But the plaintiff insists that by the effect of the agreement between Mickle and King just prior to the confessions, $700 was due and owing by King to Mickle without any contingency. Very probably the agreement, based on the promise by King to confess judgment, might have been valid. But the agreement was nothing more than making Mickle the principal debtor and King surety on the notes as between themselves; and it could not be said that King was indebted to Mickle in that amount over and above all just demands.

The plaintiff urges that judgment may be confessea for a tort, and that a tort is not a debt. That may be true. But when the parties have settled and agreed on the damages which are to be paid in compensation for a tort, it might not be a forced construction to say, in such an affidavit, that the defendant was indebted in that amount. Whether, however, a case of tort is within these sections we need not decide.

It is true that in this case Mickle did subsequently pay these notes. But we think that the learned justice correctly held that such payment was immaterial as to the point now considered.

In confessions of judgment in courts of record there is a special provision for the issue of execution when the debt is not all due; the word "due" there meaning payable. Section 1277. See Jaffray v. Saussman, 52 Hun, 561; 23 N. Y. State Rep., 823, and National Park Bank v. Salomon, 23 id., 566. In § 3026 it is provided that executions on justices' judgments must specify the sum recovered and the sum actually due. Now whatever the meaning of the word "due" in this section, as the executions were issued the same day with the judgments, it is plain that, as to the amount of the notes, nothing was due, in either meaning. And the executions, in fact, did not state that any amount was due; a defect which may be a mere irregularity.

We think then that the absence of any special provision for the entry of judgments on confession in justices' courts for contingent liabilities, with the requirement of the affidavit above referred, shows that no such confessions were contemplated by the statute. There is reason for this, because proceedings in justices' courts are simple and adapted to plain cases. And it would seem strange, if judgments on contingent debts had been contemplated, that provisions similar to those of § 1274 were not added.

The plaintiff urges that the judgments are good at least to the extent not given to secure the notes. We do not see how, in regard to these justices' judgments, we can hold this.