Owen v. Conner — 33 N.Y. St. Rep. 144

Majority

p. 144

William H. Owen, App’lt, v. John R. Conner, Impl’d, Resp’t.

(City Court of New York,

General Term,

Filed October 6, 1890.)

Headnote

Judgment—Joint debtoks.

In an action upon an alleged joint contract, awecovery may be bad against one of the defendants if his individual liability be established.

Appeal from judgment rendered in favor of defendant Conner.

M More, for app’lt; Lawton & New, for resp’t.

The defendants were sued as joint debtors, and the trial judge submitted to the jury the question whether there was a joint obligation or not. In other words, whether the defendants were partners. The plaintiff’s counsel requested the court to charge that if Mr. Conner was carrying on business himself, and not as partner of the co-defendant, he was liable on the cause of action established. The trial judge declined so to charge, because the action was not brought against Conner individually. This was error. The Code has. modified the common law rule, that, in an action upon an alleged joint contract, the plaintiff must, recover against all the defendants, or be defeated in the action, so that now a verdict may go against one in favor of the other. Code, § 1204; Brumskill v. James, 11 N. Y, 294 ; and see notes, to Bliss’ Code under § 1204, supra, tinder the rule established by the Code, the plaintiff was entitled to a verdict against Conner whether the liability established against him was a joint or

p. 145

individual obligation, and the only question to be determined was whether there was a liability against him in either form. It follows-that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

McAdam, Cli. J., and Yah Wyck, J., concur.