Hyperlawhypertext legal database Barth v. Amberg 9 N.Y. St. Rep. 522

← Cases

Barth v. Amberg

9 N.Y. St. Rep. 522 Court N.Y. City Ct. Decision date 1887-05-27 English

Delivered by Hyatt, J.

Contents

Majority

p. 522
Samuel Barth and Philip Strauss, Resp’ts, v. Gustave Amberg and Robert Burckhardt, App’lt.
(City Court of New York, General Term,
Filed May 27, 1887.)

Headnote

Pkactice—Judgment—When given against one of sevekal defendants—Code Crv. Pko., § 1,204.
Where a joint contract was set forth in the complaint as the ground of the action against the defendants as joint debtors. Held, That the court at the trial could still award judgment in favor of the plaintiff against one of the defendants, if as a matter of fact, it was made to appear that such one was the only person liable to the plaintiff. Code Civ. Pro., § 1,204.
Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiffs against the defendant Amberg.
Douglas A. Levien, Jr., for resp’t; William N. Loew, for app’lt, Amberg.

The complaint charges that the plaintiffs sold and delivered to the defendants at their request certain

p. 523
goods. The defendant Amberg denies this and sets up a misjoinder of parties defendant.

The motion to dismiss the complaint, upon the ground that the plaintiff on the trial did not establish that the goods were sold to the defendants jointly was properly denied.

Section 1204 of the Code of Civil Procedure allows judgment to be given for or against one or more plaintiffs, and for or against one or more defendants.

Assuming that a joint contract has been set forth in the complaint as the ground of the action against the defendants as joint debtors, the court at the trial can still award judgment in favor of the plaintiff against one of the defendants, if, as matter of fact, it shall be made to appear that such one is the only person liable to the plaintiff. Clegg v. Cramer, 66 How., 411 ; 32 Hun, 163 .

The real question involved in the action was clearly presented by the court to the jury for their consideration. They were instructed that if they found that Burckhardt was the duly authorized agent of the defendant Am-berg, their verdict must be for the plaintiff, against the defendant Amberg; they so found.

We do not find in the record any error which will justify a new trial.

The judgment must be affirmed, with costs.

MoAdam, O. J.,. concurs.