§ 1264. Entry in docket, upon return of execution satisfied.

Where an execution is returned, wholly or partly satisfied, the clerk must make an entry of the satisfaction, or partial satisfaction, in the docket of the judgment, upon which it was issued. Thereupon the judgment is deemed satisfied, to the extent of the amount returned as collected, unless the return is vacated by the court.

From 2 R. S. 362, Part 3, ch. 6, tit. 4, § 26 (2 Edm. 375).

§ 1265. Id.; where execution returned unsatisfied. Where an execution is returned wholly unsatisfied, the clerk must immediately make, in the docket of the judgment, upon which it was issued, an entry of the fact, stating the time when the execution was returned.

§ 1266. Sheriff to give copy of satisfied execution; clerk to enter satisfaction.

A sheriff, upon being paid the full amount due upon an execution in his hands, must immediately indorse thereupon a return of satisfaction thereof. He must also deliver to the person making the payment, upon the latter's request, and payment of the fees allowed by law therefor, a certified copy of the execution, and of the return of satisfaction thereupon; which may be filed with the clerk of the same county, who must thereupon cancel and discharge the docket of the judgment, as if the judgment-roll was filed in his office, and the execution was returned to him, as satisfied. But this section does not exonerate the sheriff, from his duty to return the execution, to the clerk with whom the judgmentroll is filed.

From ch. 6 of 1860, § 1 (4 Edm. 635).

§ 1267. Docket; when to be discharged and cancelled. The clerk of a county, with whom a judgment has been docketed, must cancel and discharge the docket thereof, upon the filing, with him, of a certificate of the clerk, with whom the judgment-roll is filed, showing that the judgment has been reversed, vacated, or satisfied of record; or the certificate of the clerk of the county, with whom a copy of an execution, and of a return of satisfaction thereupon, have been filed, as prescribed in the last section, showing that they have been so filed, and the docket cancelled and discharged accordingly.

From ch. 6 of 1860, § 2, and ch. 104 of 1844, § 5 (4 Edm. 627).

§ 1268. Discharge of a judgment against a bankrupt. At any time after one year has elapsed, since a bankrupt was discharged from his debts, pursuant to the acts of congress relating to bankruptcy, he may apply, upon proof of his discharge, to the court in which a judgment was rendered against him, or if rendered in a court not of record, to the court of which it has become a judgment by docketing it, or filing a transcript thereof, for an order, directing the judgment to be cancelled and discharged of record. If it appears upon the hearing that he has been discharged from the payment of that judgment or the debt upon which such judgment was recovered an order must be made directing said judgment be cancelled and discharged of record; and thereupon the clerk of said court shall cancel and discharge the same by marking on the docket thereof that the same is cancelled and discharged by order of the court, giving the date of entry of the order of discharge. Where the judgment was a lien on real property owned by the bankrupt prior to the time he was adjudged a bankrupt, the lien thereof upon said real estate shall not be affected by said order and may be enforced, but in all other respects the judgment shall be of no force or validity, nor shall the same be a lien on real property acquired by him subsequent to his discharge in bankruptcy. Notice of the application accompanied with copies of the papers upon which it is made, must

be served upon the judgment creditor, or his attorney of record in said judgment, in the same manner as prescribed in section seven hundred and ninety-six and seven hundred and ninety-seven of the code of civil procedure, if the residence or place of business of such creditor, or his attorney is known, but if unknown and cannot be ascertained after due diligence, or if such creditor is a non-resident of this state, and his attorney is dead, removed from, or cannot be found within the state, upon proof of said facts by affidavit a judge of the court may make an order that the notice of such application be published in a newspaper designated therein once a week for not more than three weeks, which publication shown by the affidavit of the publisher shall be sufficient service upon such judgment creditor, of the application.

From ch. 52 of 1875.

Am'd by ch. 602 of 1899.

§ 1269. Power of courts respecting docket.

A court of record has the same power and jurisdiction, concerning the docket of its judgments, 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.

From ch. 104 of 1844, § 7 (4 Edm. 628).

§ 1270. Clerk to file and note assignment of judgment. 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. Judgments of United States courts may be docketed. Repealed by ch. 542 of 1879.

§ 1272. To what judgments and exccutions this article applies.

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.

ARTICLE FIRST.

Confession of Judgment.

SEC. 1273. Judgment may be confessed. When married woman may confess. 1274. Statement; form thereof.

1275. Statement to be filed, and judgment entered.

1276. Judgment-roll; docketing and enforcing the judgment.

1277. Execution, where the judgment is not all due.

1278. Confession by one of several joint debtors.

§ 1273. Judgment may be confessed. When married weman may confess.

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.

From Co. Proc. § 382.

Am'd by ch. 416 of 1877, and ch. 38 of 1897.

See § 450, 1206.

§ 1274. Statement; form thereof.

A written statement must be made and signed by the defendant to the following effect:

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

2. If the judgment to be confessed is for money due or to 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.

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.

From Co. Proc. §383.

§ 1275. Statement to be filed, and judgment entered. At any time within three years after the statement is verified, it may be filed with a county clerk, or, where the sum for which judgment is confessed, does not exceed two thouand dollars, exclusive of interest from the time of making the statement, with the clerk of the city 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.

From Co. Proc. § 384.

Am'd by ch. 946 of 1895.

§ 1276. Judgment-roll; docketing and enforcing the judgment.

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.

From Id.

Am'd by ch. 542 of 1879.

§ 1277. Execution. where the judgment is not all due. 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. From Co. Proc. § 384.

§ 1278. Confession by one of several joint debtors.

One or more joint debtors may confess a judgment for a joint debt, due or to become due. Where all the joint debtors do not unite in the confession, the judgment must be entered and enforced against those only who confessed it; and it is not a bar to an action against all the joint debtors, upon the same demand.

* So in the original.

ARTICLE SECOND.

Submission of a Controversy, upon Facts admitted.

SEC. 1279. Controversy, how submitted without process.

1280. Papers to be filed; controversy thereupon becomes an action. 1281. Subsequent proceedings regulated.

§ 1279. Controversy, how submitted without process. The parties to a question in difference, which might be the subject of an action, being of full age, may agree upon a case, containing a statement of the facts, upon which the controversy depends; and may present a written submission thereof to a court of record, which would have jurisdiction of an action, brought for the same cause. The case must be accompanied with the affidavit of one of the parties, to the effect, that the controversy is real; and that the submission is made in good faith, for the purpose of determining the rights of the parties. The submission must be acknowledged or proved, and certified, in like manner as a deed, to be recorded in the county where it is filed.

From Co. Proc. part of § 372.

See § 1278.

§ 1280. Papers to be filed; controversy thereupon becomes an action.

The case, submission, and affidavit, must be filed in the office of the clerk of the court, to which the submission is made. If the submission is made to the supreme court, they must be filed in the office of the county clerk, if any, specified in the submission; if no county clerk is so specified, they may be filed in the office of any county clerk. The filing 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 subsequent proceedings therein, except as otherwise prescribed in the next section.

From Co. Proc. § 374, and parts of §§ 372 and 373.
See 1279.

§ 1281. Subsequent proceedings regulated.

An order of arrest a temporary injunction, or a warrant of attachment, cannot be granted in such an action; the costs 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 it must be tried and judgment rendered by the appellate division thereof, and if in the city court of the city of New York, it must be tried and judgment rendered at the general term thereof. 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.

From Co. Proc. §§ 372 and 373.

Am'd by ch. 946 of 1895, and ch. 526 of 1899.

See rule 41 (Sup. Ct.).

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