(20 App. Div. 532.) BLACKMER v. GREENE. (Supreme Court, Appellate Division, Third Department. October 1, 1897.) 1. JUDGMENT ON CONFESSION-STATEMENT-REQUISITES. The statement, "This confession of judgment is for a debt and liability justly due to the said plaintiff, arising upon the following facts, viz. being for a balance due for goods, wares, and merchandise sold and delivered to me, F. C. G., by the plaintiff, W. W. B., and remaining unpaid and unsecured," does not meet the requirements of Code Civ. Proc. § 1274, subd. 2, providing that the statement "must state concisely the facts out of which the debt arose, and must show that the sum confessed therefor is justly due," etc. Permission will not be granted to amend such statement as against a subsequent judgment creditor, who brings a motion to vacate the judgment based thereon. Appeal from special term, Saratoga county. Motion by John H. Robinson to set aside a judgment rendered in favor of William W. Blackmer against Fred C. Greene on his confession. From an order denying the motion, movant appeals. Reversed. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ. Edgar T. Brackett, for appellant, John H. Robinson. William J. Miner (Charles H. Sturges, of counsel), for respondent, W. W. Blackmer. PER CURIAM. This is an appeal by John H. Robinson, a judgment creditor subsequent to the judgment of the plaintiff, from an order denying his motion to set aside the judgment obtained by the plaintiff on the confession of the defendant. The statement on which said judgment was entered recites the facts out of which the debt arose as follows: "This confession of judgment is for a debt and liability justly due to the said plaintiff, arising upon the following facts, viz. being for a balance due for goods, wares, and merchandise sold and delivered to me, Fred C. Greene, by the plaintiff, William W. Blackmer, and remaining unpaid and unsecured." This statement, we think, is insufficient to meet the requirements of section 1274 of the Code of Civil Procedure, under doctrines established in Wood v. Mitchell, 117 N. Y. 439, 22 N. E. 1125. In that case the statement on which the judgment was obtained was as follows: "The said sum of $5,000 is a balance due to said plaintiff of various sums of money loaned and advanced by him to me, the said defendant, during a period from July 1, 1886, to date, and includes interest upon such loans and advances to this date." It was held to be too indefinite and deficient to meet the requirements of the Code of Civil Procedure, and that the denial of a motion on the part of a subsequent judgment creditor to set aside the judg ment was error. The statement in the case cited sets out the facts out of which the debt arose as fully and definitely as the one under consideration; and under the doctrine established by the court of 47 N.Y.S.-8 and 81 New York State Reporter. appeals in Wood v. Mitchell, supra, it is impossible to hold the statement under consideration sufficient. The case of Critten v. Vredenburgh, 4 App. Div. 216, 38 N. Y. Supp. 542, and 151 N. Y. 536, 45 N. E. 952, does not lav down any different doctrine from that stated in Wood v. Mitchell, supra. In Critten v. Vredenburgh the statement on which the judgment was entered was as follows: "That between the 1st day of March, 1893, and the 1st day of October, 1895, the plaintiffs, as co-partners, loaned and advanced to the defendant divers and sundry sums of money, which he agreed to repay with interest, and did and performed work, labor, and services for the defendant, in selling merchandise upon commission, and guarantying the accounts for the same, and that on the 1st day of October, 1895, there was an adjustment of the accounts between the plaintiffs and defendant concerning the said matters, and that the sum of $19,879.02 was found due the plaintiffs, which the defendant agreed to pay, with interest." The statement was held sufficient, because it set forth an account stated, on the authority of Broisted v. Breslin, 5 N. Y. St. Rep. 67, 105 N. Y. 682, the court assuming that, without the averment of an account stated, the statement, which was similar to that under consideration, would have been insufficient. In that case, in the opinion of the court of appeals, the court, referring to the case of Wood v. Mitchell, says: "That statement was quite different in its effect from the one in question. Its facts were peculiar, and we were quite warranted in holding that their indefiniteness vitiated the confession of judgment. The statement was vague, while the present one sets forth, similarly to a pleading, an account stated upon a certain day, and claims interest upon the sum then found to be due upon the adjustment of accounts from that day." It will thus be seen that the statement in the case cited was sustained on the ground that it averred an account stated. As against the appellant, we are of opinion that it would not be proper to allow an amendment of the statement on which the judgment was granted. See Bradley v. Glass, 20 App. Div. 200, 46 N. Y. Supp. 790. The order should be reversed, with costs and disbursements, and the motion to set aside the judgment granted, with $10 costs. (21 Misc. Rep. 178.) FISHER V. BENNETT. (Supreme Court, Special Term, New York County. August, 1897.) CLAIMS AGAINST DECEDENTS-REFERENCE-COSTS. Under Code Civ. Proc. § 2718, as amended in 1893, authorizing an executor to enter into an agreement with a claimant to refer the claim, and providing that in determining the question of costs the referee shall be guided by sections 1835 and 1836, and that judgment may be entered on his report, the referee may award costs against an executor who unreasonably resists payment of a claim, though section 1836 apparently gives such power to the court alone. Application by Isabella H. Fisher for an extra allowance of costs in an action on a claim against Jesse C. Bennett as executor of Frank L. Fisher, deceased, payment of which was unreasonably resisted. Granted. Abner C. Thomas, for plaintiff. Leventritt & Nathan, for defendant. RUSSELL, J. Since the amendment of 1893 to section 2718 of the Code of Civil Procedure, the referee has power to award costs against an executor on a claim referred, and judgment is entered on the report of the referee. Although section 1836 apparently gives power to the court alone to award costs, it must be construed in conjunction with section 2718. Whitcomb v. Whitcomb, 92 Hun, 446, 36 N. Y. Supp. 607; Winne v. Hills, 91 Hun, 93, 36 N. Y. Supp. 683; Niles v. Crocker, 88 Hun, 314, 315, 34 N. Y. Supp. 761; Ellis v. Filon, 85 Hun, 489, 33 N. Y. Supp. 138. The merits of the original award of costs are not before this court, and it must be conceded that those costs were rightly awarded. The case presented shows that it is one of those in which an additional allowance is proper, if the plaintiff is entitled to costs at all. An additional allowance of $150 is therefore granted. (21 Misc. Rep. 176.) SOMMERS v. CHRISTIANO. (Supreme Court, Special Term, New York County. August, 1897.) LIBEL-ARREST-MALICE-PRIVILEGE. In an action for libel based on an affidavit made by defendant in another legal proceeding, to which he was not a party, the claim of privilege will not exempt him from arrest, where plaintiff averred, in the affidavit for the order of arrest, that defendant made the libelous charge in such affidavit falsely. maliciously, and purposely. Action by Lottie Sommers against Donato Christiano for damages for libel. On motion of defendant to vacate an order of arrest. Denied. Reno R. Billington, for plaintiff. RUSSELL, J. The defendant claims exemption from arrest in this action for damages on account of an alleged libel on the ground that the libelous article was privileged. As the motion to vacate the order of arrest attacks the right of action itself, an examinatiou of the right to recover upon proof of the allegations of the complaint becomes necessary to reach a conclusion here. The libelous words were placed in an affidavit made by the defendant in another proceeding brought by one Jennie Homer, the young mother of a child, Arthur Homer, alleged to be illegitimate, who was placed, through the action of Magistrate Simms, upon legal proceedings instituted by the Society for the Prevention of Cruelty to Children, under the care of a benevolent society, the Missionary Sisters of the Third Order of St. Francis, in the city of New York. The sisters committed the care of the child to the plaintiff in this action, Mrs. Sommers, she having previously had charge of the child at the request of the mother, Jennie Homer, and an attachment having arisen between the child and Mrs. Sommers. The mother, Jennie Homer, after the child had been taken and 81 New York State Reporter. from her care by the intervention of the Society for the Prevention of Cruelty to Children, instituted habeas corpus proceedings before Justice Beekman, against Mrs. Sommers, and the affidavit made by the defendant here, Donato Christiano, upon the traverse of the return to the writ of habeas corpus, furnishes the ground for the cause of action stated in the complaint. In that affidavit the defendant, Christiano, after stating knowledge of the relator and the respondent, averred, upon his own personal knowledge, "that the apartments of the said respondent at No. 122 Third avenue in said city are used and frequented by female persons of notoriously bad character, with the knowledge and consent of the respondent; that the said rooms are a resort for disreputable persons of both sexes, who carry on their conversation, and the females smoke, in presence and hearing of the infant, Arthur." In the affidavit for the order of arrest, the plaintiff here avers that Christiano made that charge in his affidavit falsely, maliciously, and purposely. It will be thus seen that not only is the averment that the charge is untrue, but that it was made with express malice, for the purpose of injuring, and with knowledge of its untruthfulness; and so is presented a case where, if the facts are as charged, the shield of privilege is sought to be used for the express purpose of using in court, and placing upon the court records, a writ ten statement, under oath, designed purposely to injure the character of the plaintiff in the most serious way. A review of some of the authorities in analogous cases may be useful. The general rule is that an affidavit used in judicial proceedings is privileged as to pertinent and material matter. Warner v. Paine, 2 Sandf. 195; Garr v. Selden, 4 N. Y. 94. Witnesses and parties may testify to anything material upon motion or trial, provided no malice and want of probable cause be shown. Streety v. Wood, 15 Barb. 105. It follows, therefore, that the ordinary presumption is that an affidavit used upon a motion is privileged, and the plaintiff must assume the burden of proving express malice; the ordinary course of proving a libelous charge and resting not being sufficient. Lovell Co. v. Houghton, 116 N. Y. 525, 22 N. E. 1066; Klinck v. Colby, 46 N. Y. 429; Hovey v. Rubber Tip Co., 57 N. Y. 125. It may be, also, that proof of the falsity of the charge in chief, with proof of the libelous article, will not be sufficient to raise the presumption of express malice. Younger v. Duffie, 26 Hun, 444; Moak, Underh. Torts, 146, cases cited. But in this case the plaintiff has by a charge assumed the burden of proving the falsehood, the malice, the intent. If she succeeds in making satisfactory proof upon those subjects, she has established her cause of action. The law will not permit the shield of privilege to prevent redress from a malicious wrong. An examination into the facts of the truth of the charge of the defendant against the character of the plaintiff is unnecessary here, for in this proceeding the defendant does not seek to establish the correctness of his previous charge. He only seeks to deny malice, and the inference that he is practically a foreigner. The motion to vacate must be decided upon the verified cause of action, as alleged by the plaintiff; and, upon all the proceedings and affidavits used upon the habeas corpus matter, as well as the papers in this action, the plaintiff makes a fair case of express malice on the part of the defendant. The motion is, therefore, denied, with $10 costs. Motion denied, with $10 costs. (20 App. Div. 518.) TICE FIRST NAT. BANK OF CANTON v. WASHBURN. (Supreme Court, Appellate Division, Third Department. September 28, 1897.) 1. MORTGAGES-FORECLOSURE COSTS AGAINST A RECEIVER PERSONALLY-NoWhere a receiver unreasonably defends a suit to foreclose a mortgage, he is entitled to notice of an application to charge him personally with the costs. 2. SAME-UNREASONABLE DEFENSE BY RECEIVER-Costs. Where a receiver unreasonably defends a suit to foreclose a mortgage, he should be charged only with the costs caused by the defense, in the absence of any reason why he should be punished by charging him with the costs not caused thereby; and a judgment, in such case, for the entire costs, on default of the receiver after notice of motion for adjustment, should be opened, unless plaintiff stipulates to limit the costs against the receiver to those caused by the defense. Appeal from special term, St. Lawrence county. Action by the First National Bank of Canton against James S. Smith, as receiver of the property of the firm of Smith & Hanfield, impleaded with others, to foreclose a mortgage. Pending the action, Monroe B. Washburn was substituted as receiver; and afterwards there was a decree of foreclosure, and a judgment against Washburn, individually and as receiver, for the costs. From an order denying his motion to resettle the findings and open such judgment, Washburn, individually and as receiver, appeals. Reversed. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ. Kellogg, Rose & Smith, for appellant. Lawrence Russell and J. S. L'Amoreaux, for respondent. MERWIN, J. This action was commenced in December, 1895, for the foreclosure of two mortgages bearing date August 1, 1894, for the sum, in the aggregate, of $10,000, and interest. The full amount of the mortgages was claimed to be due. James S. Smith, as receiver of the property of the firm of Smith & Hanfield, was made a party defendant, it being alleged that he, among others, had or claimed some interest in or lien on the premises, subsequent to the lien of the mortgages. Smith, as receiver, was not served, and on the 3d of June, 1896, Monroe B. Washburn was substituted as receiver in the place of Smith. On the application of the plaintiff, Washburn, as receiver, was afterwards made a party defendant; and on the 13th November, 1896, he was served with the summons, complaint, and notice of no personal claim. On December 3, 1896, he served an answer, denying any knowledge or information sufficient to form a belief as to the matters contained in the complaint. On the 17th April, 1897, the plaintiff's attorney served on the attorneys for the receiver a notice of trial for the St. Lawrence term, on the 3d May, 1897, stating also that motion would then and there be made for |