Kantrowitz v. Kulla.

confession,-is remedial in its nature, and should be liberally construed

to give efficacy, according to its evident spirit and intent.

Effect must be given to the purpose of a statute, though the construction seems contrary to the strict letter of the act; for a thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter.

(Decided October 28, 1887.)

Appeal by plaintiff from order vacating attactment.

The plaintiff sued Jacob Kulla and Abraham J. Kantrowitz as copartners, amd on July 27, 1887, Abraham J. Kantrowitz served an offer to allow judgment to be taken against him in the action for the amount claimed, with interest and costs. On the following day, the plaintiff accepted the offer and entered judgment thereon. Nordlinger and others, subsequent attaching creditors, thereon moved to vacate the attachment obtained by the plaintiff in so far as it affected the joint property of both defendants and the separate property of Krella, the defendant, not included in the offer and judgment. The application was granted and an order made adjudging that the judgment entered against one of the joint debtors barred all remedy by the creditor against the other. From this order the plaintiff appealed.

D. A. Levien, for plaintiff-appellant.

II. W. Mack, for defendant-respondent.

MCADAM, Ch. J.-An offer to allow judgment under section 738 of the Code Civ. Pro. is but a substitute for the former cognovit, by which a defendant who had no defense gave to the plaintiff a written confession of the action (Grah. Pr. 2 ed. 781). Assuming, therefore, that the offer provided for by Code Civ. Pro. § 738, is practically a written confession by the defendant making it, there is no reason why judgment may not be entered against the one making it without barring the action against the other joint debtor who did not (Code Civ. Pro. § 1278).

Kantrowitz v. Kulla.

Prior to the enactment of this section, a judgment against one joint debtor operated to merge the debt in the higher security of the judgment, which was regarded as a bar to any action against the other joint debtors, and this, whether the judgment was recovered by action or upon confession. (Candee v. Smith, 93 N. Y. 349). Section 1278 was designed to change this technical rule of the common law by permitting one of several joint debtors to confess judgment without impairing the legal remedies of the creditor against the others who do not join in the confession. This section (1278) in our judgment was passed with reference not only to section 1273,—which provides for judgments by confession without action,but to section 738,-which authorizes a form of judg ment by confession "after action," through the medium of a cognovit or offer. There is certainly no cogent reason why the new rule introduced by section 1278 should be limited in its application to "confessions," technically so called, or why it should not be held to embrace "confessions" made through the medium of a cognovit or offer to allow judgment. They are all confessions of judgment authorized by the Code, serve the same purpose, and differ only in name and form.

There is no magical force in the name of a thing, for the law looks to substance, not form. It regards the thing, and not the name by which it is called.

The new provision is remedial in its nature, and should be liberally construed to give efficacy according to its evident spirit and intent. Effect must be given to the purpose of a statute, though the construction seems contrary to the strict letter of the act. (Jackson v. Collins, 3 Cow. 89; White v. Wager, 32 Barb. 250; Rice v. Mead, 22 How. Pr. 445); for a thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter (People v. Utica Ins. Co., 15 Johns. 358).

Properly interpreted, section 1278 of the Code

Seligman v. Falk.

applies to the case at bar; and, by force of its provisions, the judgment entered against the one joint debtor upon his offer of judgment did not merge the debt or bar the remedy of the creditor against the other debtor not included in the offer and judgment. It follows, therefore, that the order vacating the attachment as to the partnership properly of both debtors and as to the separate interest of the one not included in the offer and judgment must be reversed, with costs.

NEHRBAS J.-[Concurring.]-A strict construction of section 1278 of the Code would undoubtedly exclude judgments entered upon offers after suit bought. But I agree with the Chief Justice that that section, being in its nature remedial, should be liberally construed, and that the maxim "Expressio unius est exclusio alterius" should not be strictly applied.

I therefore concur in the opinion of the Chief Justice.

SELIGMAN AND ANOTHER, RESPONDENTS, v. FALK, ET AL., APPELLANTS.

SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, MARCH, 1887.

$ 645-648, 650, 651.

Attachment-Certificate as to property-Right to examination.

An attachment plaintiff is not bound to accept the certificate of one alleged to be indebted to or to have property of the defendant, where it is not responsive, and unless the court can see that there is at least a fair bona fide compliance with the demand made for the certificate, the plaintiffs have a right to an examination.

Seligman v. Falk.

Whatever is the subject of a levy under an attachment, may be the subject of an inquiry in a proceeding thereunder.

If proof that an alleged debtor of the defendant in an attachment is indebted to, or has property in his hands belonging to such defendant is necessary before an order for his examination will be made on the ground that he has failed to furnish a sufficient certificate, it is sufficiently given where the plaintiff states that he has been informed by those sought to be examined of the existence of the indebtedness or of the property. The certificate required by the Code to be given by one asserted to be indebted to or have property of the attachment debtor is a general statement specifying the amount, nature or description of the property held, or of the debts or demands owing to the defendant, as the case requires, and if the property sought to be reached is an interest in a copartnership business, and the certificate furnished was to the effect that the interest of the defendant in the firm could not be ascertained until an accounting could be had, or that he had no interest in the firm, or that they had no property of his, it seems, that the court would require a more formal proceeding to ascertain the precise nature of the interest.

The interest of a defendant in firm property may be levied upon under an attachment.

(Decided March 31, 1887.)

Appeal from an order requiring Isaac L., Zachariah and George W. Falk to submit to an examination "as to the defendants' property, and property interest, held by them or either of them as members of the firm of I. L. Falk & Company, or as individuals.”

The material facts are stated in the opinion.

B. F. Einstein (Townsend, Dyett & Einstein, attorneys), for the appellants.

Sections 650 and 651 of the Code do not apply to a case where the property sought to be attached is the interest of a partner in the assets of a partnership. A partner is not a debtor of his partner, for the latter's interest in the partnership, nor can a partner, because of his possession of the firm property, be said to hold property of his copartner. "The corpus of the effects"

Seligman v. Falk.

say the court of appeals, in Menagh v. Whitwell, 52 N. Y. 146, "is joint property, and neither party separately has anything in that corpus; but the interest of each is only the share of what remains after the partnership debts are paid and accounts are taken." Kent lays it down as elementary that "the interest of each partner in the partnership property is his share in the surplus, after the partnership accounts are settled and just claims satisfied; and it follows that no suit at law can be maintained by one partner against his copartner until a final settlement has been made, and the balance ascertained, and a promise contracted to pay it." 3 Kent Comm.

37.

And the partnership property is not in the exclusive possession of a partner. But each partner is possessed of the whole. Id. Again. The certificate is for the benefit of the sheriff. It is designed to give him information so that he can, as directed by section 655, "collect and receive all debts, effects and things in action attached by him, and for this purpose he may maintain any action or special proceeding in his own name or in the name of the defendant." Lynch v. Crary, 52 N. Y. 183. It follows that the sheriff can require a certificate only of such things in action as he can collect or receive under section 655. The sheriff cannot reach equitable assets, and therefore cannot inaintain an action against the appellants for an accounting to ascertain the extent of the defendant's interest in the partnership property. Thurber v. Blanck, 50 N. Y. 80; Bowe v. Arnold, 31 Hun, 256; Connor v. Weber, 12 Hun, 580. The effect of the order appealed from, however, is to permit the sheriff, under an attachment, to summarily require the appellants to account to accomplish the very thing that the courts have determined he cannot do by a more solemn proceeding.

Eugene Seligman (Seligman & Seligman, attorneys), for respondents.