Groesbeck v. Brown

Decided December 15, 1845

New York Supreme Court · decided 1845-12-15

Motion by defendant Brown to set aside judgment for irregularity. The defendants in this cause were co-partners, and as such were indebted to plaintiffs. On the 22d September last, plaintiffs’ attorneys served on defendant Johnson a declaration. Johnson employed one Whipple, an attorney, to appear for both defendants, and directed him to give a cognovit in the cause for the amount of the indebtedness.

Relies on Pardee v. Haynes & Merriam

Decided 1845-12-15

Jewett, Justice.

¶1The judgment against Brown must be set aside. Whipple had no authority to confess a judgment as his attorney. Brown *has a defence on the merits, and the attorney is not responsible. It would have been competent for Johnson to have confessed a judgment under the joint debtor act, so as to bind partnership property, the declaration being served on him, (10 Wend. 630,) but that is not this case; here the judgment is against both defendants as upon a service of process upon both. Besides, there is good ground to believe that this judgment was .the result of collusion between the plaintiff’s attorneys, Johnson and Whipple.

¶2Motion granted that the judgment and execution as against the defendant Brown be set aside, with $10 costs.