APPEAL by Boro Rendezvous, Inc., and Koenig Catering Corp. from an order of the Supreme Court at Special Term (NATHAN, J.), entered June 19, 1953, in New York County, which denied a motion by said plaintiffs pursuant to rule 112 of the Rules of Civil Practice and section 476 of the Civil Practice Act for judgment on the pleadings against defendant-respondent on the first cause of action in the complaint.
Mortimer G. Levine for appellants.
Darwin W. Telesford of counsel (Monroe I. Katcher, II, in person, with him on the brief), for Monroe I. Katcher, II, respondent.
This is an action to set aside and cancel of record three separate confessions of judgment on the ground that the confessions and the judgments entered thereon were procured by defendants' fraud. Plaintiffs moved for judgment on the pleadings, asserting that defendant Katcher's answer made the jurisdictionally fatal admission that the confessions were filed in a county other than the one specified in section 543 of the Civil Practice Act; and they appeal from the order of Special Term denying their motion.
This appeal poses the question as to whether a judgment entered upon a confession of judgment filed in a county other than the one in which the defendant resides is so jurisdictionally and fatally defective that it is a nullity; or whether it is voidable so that as between themselves, and if creditors' rights do not intervene, the parties may waive the filing requirements of section 543.
Section 543 of the Civil Practice Act in providing for the filing of confessions of judgment, reads in part: '1. At any time within three years after the statement [confession of judgment] is verified, it may be filed with the county clerk of the county of which the defendant was a resident at the time of making such statement'. There is no doubt that the meaning of the word 'may' in the above context is that the holder of such a confession may or may not file it, but that if he does he must file it in the appropriate county (Williams v. Mittlemann, 259 A.D. 697).
The moving plaintiffs have alleged in their complaint that they are New York corporations maintaining their principal offices in Queens County. The first cause of action alleges in some detail that by fraudulent misrepresentations the defendant Katcher induced the plaintiffs to execute three confessions of judgment, that he filed them in the office of the Clerk of New York County and caused judgments to be entered against the plaintiffs. The plaintiffs' prayer for relief asks that the confessions be set aside and the judgments entered thereon be cancelled.
The defendant Katcher's answer admits the allegations placing the plaintiffs' principal offices in Queens County and fixing New York County as the place of filing the confessions. Upon
these admissions the plaintiffs move for judgment on the pleadings, arguing that the answer is insufficient at law because the confessions were filed in the wrong county and the judgments issued thereon are therefore jurisdictionally void.
In the statements containing the confessions the plaintiffs explicitly agreed that the judgments be filed in New York County. To prevail on this motion the plaintiffs must therefore establish that their purported consent to filing the confessions in New York County was ineffectual because it could not cure the jurisdictional defect. 'Wherever there is a want of authority to hear and determine the subject-matter of the controversy, an adjudication upon the merits is a nullity and does not estop even an assenting party' ( Matter of Walker, 136 N.Y. 20, 29).
We first look to the statute, because if the Legislature has plainly said that these judgments are void that expression is decisive of the issue presented here (Caminetti v. United States,242 U.S. 470). Is there such a legislative mandate evident in section 543? A reading of the applicable portion of the section compels no such conclusion. At most it affords room for argument on both sides. In fact, in section 543 itself, the Legislature demonstrated that when it wishes to remove a question such as this from the arena of reasonable litigation it can use language to accomplish that purpose. In subdivision 2 of section 543, relating to the entry of judgment by confession on an installment purchase, the following sentence appears: 'A judgment, if entered in violation of the provisions of this paragraph, shall be void and unenforceable.' And when the Legislature desired to declare certain chattel mortgages 'absolutely void' as against certain defined persons, it did so clearly and ...