Majority
p. 97SUPREME COURT. Cyrus Scofield and George Fox agt. Rensselaer W. Van Syckle. New York General Term, March, 1862. Leonard, Ingraham and Clerke, Justices.
Headnote
A demurrer to a complaint at law, for the non-joinder of parties defendant, can not be sustained unless it appears by the complaint that some other party for whose non-joinder the demurrer is interposed, is living at the time the action is commenced. The objection otherwise must be taken by answer.The complaint in this action was for the amount of a promissory note made by the firm of Taylor & Van Syckle, on the 30th July, 1853, to the order of John I. Hollister, for the sum of $1486, with interest from date, who, for a valuable consideration, indorsed and delivered the same to the plaintiffs, and demanded judgment against the defendant, Rensselaer W. Van Syckle for the sum of $682.87, with interest and protest, as the balance due thereon.
The defendant demurred to the complaint on the following ground : “ That there is a defect of parties defendants ; the cause of action being a joint action against the defendant and one Stephen 0. Taylor.
The demurrer was brought on to argument before Mr. Justice Sutherland, at the special term in July, 1860—■ who ordered judgment upon the demurrer for the plaintiffs, with costs, with liberty to the defendant to answer in twenty days, on payment of costs. From this decision the defendant appealed to the general term.
John H. White, for appellant.
John Fitch, for respondent.
By the court,
A complaint is not demurrable for defect of parties defendant, at law, unless it
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appears thereby that some other party for whose non-joinder the demurrer is interposed is living at the time the action is commenced.
The objection in such case must be taken by answer. (Brainard agt. Jones, 11 How. Pr. R., 569; Burgess agt. Abbott, 1 Hill R., 416; S. C. 6 Hill, 135 ; affirmed in court of errors.)
The order appealed from is affirmed, with costs, and judgment ordered for the plaintiff, unless the defendant answer in twenty days and pay the costs of demurrer and of this appeal.