The facts relating to this controversy are given in the opinion upon the former appeal (11 N. Y. Supp. 408), where the judgment as-*522against the defendant Louise Nellis was reversed and a new trial ordered. Upon the new trial we have, in addition to the former record which was admitted by stipulation, the testimony of the defendant Louise Nellis and that of her attorney; and it remains to determine whether such evidence supports the conclusion reached by the trial judge in upholding the confession of judgment in her favor.
The confession of judgment given her, and sworn to on December 28, 1887, states that between May 12 and December 9, 1887, she loaned the firm of Payne, Steele & Co. the sum of $2,056, and that $1,656 was paid, leaving $400 due, with interest from December 9, 1887. The correctness of the defense made and of the conclusion reached in the court below depends, therefore, upon whether this statement in the confession was or was not true. The confession recited also other transactions between the parties represented by notes and amounting to $1,418, not due at the date of the confession, but as no controversy arises on this appeal concerning them, they may be dismissed from further consideration.
We are thus brought to the real question in issue, namely, whether at the date of the confession of judgment there was $400 due the defendant. In reference thereto, we have the books of the firm, which show the defendant’s account as follows :
Credit items:
Money loaned, $1,000, $600, $100, $300 ....... $2,000
Interest, $10, $10, $36, $18.................. 74
- $2,074
(Two other credit items of $600 and $900 are balanced by notes given by the firm.)
.Debit items:
Cash payments, $40, $60, $50, $30, $20, $10,
$10, $36, $30, $70........................ $356
Notes, $618, $800 ......................... 1,418
--1,774
(There is also a note for $300, dated December .ninth.)
Money due.................................... $300
By the above calculation and disregarding for the time this $300 *523note, it appears that $300, instead of $400, as stated in the confession of judgment, and outstanding notes of $1,418, was due the •defendant. The discrepancy is owing to the failure to credit the firm with the last two payments of $30 and $70, which are marked “cash to W. C. Nellis.”
The defendant’s attorney testified, under the plaintiff’s exception, that he drew up the confession of judgment given Louise Nellis from the accounts of the firm, and made it by crediting her with having loaned all the money that appears in the notes which were not paid and renewed, and charging her with the payment of the notes that were renewed, and endeavoring to strike the exact balance, and that after he had so prepared the confession, the firm .swore to it. This testimony was intended to excuse any error of the confession, and according to the showing made, the amount of
$400 appears to have been obtained as follows :
Loans, $1,000, $600, $100, $300 .............$2,000
Interest, $10, $10, $36..................... 56
- $2,056
Cash payments, $40, $60, $50, $30, $20, $10, $10,
$36....................................... $256
Notes paid, $600, $800............. 1,400
- 1,656
Money due $400
Interest ........................................ $18
Notes, $600, $800. .................................. 1,400
Notes.......................................... $1,418
The sums of $30 and $70 are not accounted for, nor is the $300 •note mentioned.
The defendant’s testimony is that her dealings' were with Mr. Payne, not personally, but through her son, and that she loaned money which was the proceeds of her deceased husband’s insurance, .at the legal rate for six months, the sums being $1,000, $618 and $300, making $1,918 in all; and that she received back sums, leaving a balance due of $1,718 (evidently notes, $1,418, and cash $300); that she did not advance the sum of $2,906; that $1,656 was not the sum repaid, and that she knew nothing of the confession of *524judgment or of any fraud. The figures so sworn to are, with entries, of interest, in accord with the showing of the boobs and differ from the statement of the confession of judgment as to the sum mentioned of $100.
There is another view to be taken of the account as it appears in-the books, but it brings us to the same conclusion.
The two cash payments of $30 and $70 are dated respectively December ninth and December tenth. The statement in the confession of judgment is that moneys were loaned between May 12, 1886, and December 9,1887, and that “ there is now justly due $400. If the confession of judgment had been sworn to on December ninth, there would be support for the finding that $400 was due.. The statement in the confession moreover would not be in conflict, with the defendant’s own evidence. In testifying she had in mind no doubt the debt due her after the $100 was paid, this appearing-from her statement that she knew nothing of the confession of judgment ; and it is fairly probable, from the fact that her interests were-managed by her son, that she knew little or nothing about the account anyway.
We are not affected in our conclusion, therefore, by the fact that there is an apparent discrepancy between the defendant’s evidence and the confession of judgment; but taking the books upon which she must have relied to support her claim and comparing the account with the confession of judgment, it is made certain that when the confession was sworn to on the twenty-eighth of December, the two. payments referred to had been made, and there was then due no. more than $300. An examination of the account further shows that there was a note for $300 given by the firm on December ninth, of which no account seems to have been taken.
It will thus be seen that, from whatever point of view we approach the subject, there could be no finding on the evidence as to the amount due her on December twenty-eighth, the date of the confession of judgment, of a greater sum than $300; or, in other words, it is evident that the judgment confessed exceeded the amount due by at least the sum of $100.
That this error was not intentional nor made with any intent to defraud must be conceded, but it is, nevertheless, under the authorities, fatal to the confession of judgment. As said in Rutherford *525v. Schottman (17 N. Y. St. Repr. 263, 266) : “ Whether the statement was intentionally false, and thus the confession fraudulent in fact, is immaterial; it was fraudulent in law, and the judgment confessed was, consequently, void.”
The judgment accordingly must be reversed, and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.