Trusts & Guarantee Co. v. Sawyer — 146 A.D. 63

Majority

p. 63

The Trusts and Guarantee Company, Limited, Respondent, v. Ernest L. Sawyer, Appellant.

First Department,

July 7, 1911.

Headnote

Joinder of actions — action on judgment joined with one on contract made by defendant and another — party — actions against persons jointly but not severally liable.

An action upon a judgment cannot be united with one on an account stated between the plaintiff, the defendant and a third person on an agreement which was joint on the part of the defendant and the third person but was not several.

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The third person is a necessary party defendant to an action on such account.

So, too, there is a defect of parties in an action on a promissory note made ' by the defendant and a third person, not made a defendant, where only a joint liability is alleged. Nor can it be asserted on demurrer that the form of the note created a joint and several liability against the makers if the note is not set forth in the complaint.

Appeal by the defendant, Ernest L. Sawyer, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of April, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to .the amended complaint.

James T. Kilbreth [Henry G. Schackno with him on the brief], for the appellant.

Nelson L. Keach [Stephen Callaghan with him on the brief], for the respondent.

Three causes of action are set forth in the complaint in separate counts. The demurrer is upon the'grounds that the three causes of action have been improperly united in that one is to recover on a judgment against. the defendant and the others are to recover on contracts made by plaintiff with the defendant and one Cox jointly, and that there is a defect of parties defendant with respect to the second and third causes of action in the omission of Cox as a defendant. We are of opinion that all of the grounds of the demurrer were well taken.

In the first count of the complaint it is alleged that a judgment for money was duly recovered by the plaintiff against the defendant in the High Court of Justice, which is a court of record, in the province of Ontario Dominion of Canada,. and judgment for the amount thereof, with interest at the rate . allowed by the law of Canada, is demanded. The second count of the complaint is on an account stated between the plaintiff, the defendant and said Cox, by which it is alleged that the sum of $2,652.47 was found due to the plaintiff from the defendant a and the said Cox ”• under two agreements which are' annexed to and made part of the complaint. The. first

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agreement was made between the plaintiff and the defendant and Cox. By it the plaintiff was to guarantee dividends on certain stock of the Ophir Mines Development Company of Ontario, Limited, which was owned by the defendant and Cox, and which was to be placed on sale with the plaintiff at par, and the charges to be made by the plaintiff for its services were therein specified. By the second agreement the defendant and Cox assigned the stock to the manager of the plaintiff as security for any advances made to them by plaintiff, and for any amount that their account with the plaintiff might be overdrawn, and they promised to repay plaintiff on demand any overdrafts against their account with interest, and in default thereof they authorized the plaintiff’s manager to sell their stock without notice. Both agreements are joint on the part of the defendant and Cox, but not several. It is quite evident, therefore, that Cox is a necesgary party defendant to an action on that count.

The third count of the complaint is on a promissory note alleged to have been made by the defendant and Cox to the order of one Coffee, for the use, benefit and account of the plaintiff, and which was thereafter duly indorsed over and delivered to the plaintiff. It is claimed that the form of the note, which is set forth in the points of the respondent, created a joint and several liability against the makers; but the note is not set forth in the complaint and as pleaded only a joint liability is alleged. Cox, therefore, is a necessary party to this cause of action.

It follows that the interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend on payment of the costs of the appeal and of the demurrer.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Judgment reversed and demurrer sustained, with leave to plaintiff to amend on payment of costs.