Majority
p. 482CHARLES DUSENBURY, Respondent, v. HOMER FISHER, Appellant.
Headnote
Parties—relief as between—adjudication between co-defendants, when not granted—joint claim must be prosecuted against parties jointly defendants or jointly plaintiffs.An adjudication between co-defendants, to be binding upon them, must be founded upon and connected with the subject-matter in
p. 483Before Sedgwick, Ch. J., Speir and Freedman, JJ, Decided December 5, 1881.
litigation between the plaintiff and one or more of the defendants, and where the court decides that plaintiff is not entitled to the relief asked by him, for the reason that he is not the real party in interest, an adjudication will not be made as to the rights of the defendants between themselves.
The forms of procedure do not permit the prosecution of a joint claim,—e. g., by accounting, &c.,—against parties who do not appear' jointly as plaintiffs or defendants.
Appeal by defendant-, Fisher, from judgment in his favor, entered on report of referee.
The action was, at its beginning, against the members of two firms, the present appellant and the other present defendants not being made parties. The-plaintiff claimed that he and the two firms were joint adventurers in a certain purchase, and that he was entitled to an accounting concerning it. The parties went to trial. It appeared to the court that other persons-were necessary defendants. It, therefore, ordered that the present appellant, Fisher, and two persons named Thomas Busenbury and Benjamin Busenbury, be made-defendants. The complaint was amended by restating the contents of the original complaint, by alleging that-the court had made the order referred tó, and that the persons named in it were made defendants in compliance with it, and that the defendants, Busenbury, or either, did not claim to have any interest in the joint purchase. The appellant, Fisher, answered, alleging that the plaintiff did not individually have the joint adventure referred to, but that a firm composed of the plaintiff and the defendants, Busenbury, called Thomas Busenbury & Son, did have such a joint adventure, and claimed that there should be an accounting in the action, in respect of the adventure. By leave of the
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court the appellant served his answer on the co-defendants. The defendants, Dusenbury, demurred to the complaint. The demurrer was overruled, and they did not answer over.
On the trial it appeared that the plaintiff wás not individually a party to the adventure, but that the firm of Thomas Dusenbury & Sons, composed of the plaintiff and the defendants, Dusenbury, were parties ; that the other parties were the appellant, Fisher, and the two firms, the members of which were the original defendants, and who remained defendants; that the last-mentioned firm had assigned their interest in the adventure to defendant, Fisher. The appellant claimed before the referee that he was entitled to a judgment, that the parties to the action account in respect to the adventure, but the referee found that the complaint should be dismissed, and being of opinion that in such case, he had no power to proceed to order an accounting as claimed by the appellant, refused to order judgement as asked by appellant.
From this determination defendant Fisher appeals.
The referee, Hon. Homer A. Nelson, after stating the facts, wrote as follows :
“As to the right of the answering defendants to judgment against Thomas Dusenbury & Sons, under what is now known as the ‘Old Code,’ section 274 provides: ‘Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants ; and it may determine the ultimate rights of the parties on eaph side, as between themselves, and it may. grant to the defendant any affirmative relief to which he may be entitled.’
“Ithas been determined that this section should be read in connection with section 118 of the same Code, and that the provisions of both were taken from the practice in chancery, and had done no more than adopt
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that practice (Wells *. Smith, 1 Abb. Pr. 261 ; M. & T. Savings Institute v. Roberts, 1 Id. 381 ; Tracy v. 1ST. Y. S, Faucet Man. Co., 1 E. D. Smith, 349; Norbury v. Seeley, 4 How. Pr. 73 ).
“Adopting this construction as the correct one, I am satisfied that under the practice in chancery, where the court on the trial decided that the complainant could not maintain his bill, and that it should be dismissed for the reason that he was not the party in interest, judgment was never awarded adjudicating the rights of defendants as between themselves, and particularly as against these defendants, who had not answered in the cause.
“As to the right of the answering defendants to judgment against Thomas Dusenbury & Sons, under the present Code of Civil Procedure—
“ Section 1204 provides : ‘ Judgment may be given for or against one or more plaintiffs, and for or against one or more defendants. It may determine the ultimate rights of the parties on the same side, as between themselves, and it may grant to a defendant any affirmative-relief to which he is entitled.’
“ This section is substantially the same as section 274 of the old Code, in reference to which the commission of appeals, in King v. Whittaker ( 44 N. Y. 565 , 576), say that, under the provisions of section 274 of the Code, a judgment in an action ‘may determine the ultimate rights of the parties on each side, as between themselves. Defendants can have relief against each other only in a case in which they have appeared and.answered in reference to the claim made against them by the plaintiff, and as a part of the adjustment of that claim, and that it must be based upon the facts involved in and brought as by the litigation and investigation of that claim.’
“It certainly is no part of the adjustment of the claim of the plaintiff to allow the defendants to try
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the question as to their rights against Thomas Dusenbury & Sons if I have correctly decided that the plaintiff has no right to maintain the present action, as brought, and that it must be dismissed, and which decision is one that the defendants, answering, claim and insist under the evidence given on the trial before me, is the proper one to be made, and the only one that a fair-minded and disinterested court or referee could make as to that question.
1 ‘ Section 521 of the new Code provides as follows: 4 Where judgment may determine the ultimate rights of two or more defendants as between themselves, a defendant who requires such a determination must demand it in his answer, and must, at least ten days before the trial, serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination.’
“This is a new section, and in my judgment was designed and intended to direct as to the course of procedure in a case where the right existed to have 4 the ultimate rights of. two or more defendants, as between themselves ’ determined, and should be read •and construed in connection with section 1204. Having come to the conclusion that I should dismiss the complaint, for the reason that plaintiff is not entitled to maintain the action to obtain an accounting as to the transaction mentioned, I think it follows that section .521 does not aid the claim made by the answering defendants, that Thomas Dusenbury & Sons, as a co-partnership, shall account to them in this suit.
41 For the foregoing reasons I have declined to state the accounts between the firm of Thomas Dusenbury & Sons, Schuyler, Hartley & Graham, Starr & Frazier, and Homer Fisher, who were jointly interested in the purchase and sale of the shot, shell, ordnance stores and other property.
“ On the question whether Charles Dusenbury was
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the party in interest in said joint ventures, or whether his only interest therein was, and is, solely and only as a member of the firm of Thomas Dusenbury & Sons, I think the evidence conclusively establishes the fact that the firm of Thomas Dusenbury & Sons was the party, and Charles Dusenbury was not.”
Theodore P. Miller, for appellant.
Ira I). Warren, for respondent.
I am of opinion that the action was properly disposed of by the learned referee, for the reasons given by him.
If the claim was to adjust the accounts between- the defendants only, the exceptions to the power to direct such an account that are recognized in Elliott v. Pell (1 Paige, 268), and Jones v. Grant (10 Id. 350), would have to be applied. In the former case, it was said, “ But such decree between co-defendants to be binding upon them, must be founded upon and connected with the subject-matter in litigation between the complainant, and one or moreof the defendants.” The subject-matter litigated was, whether the plaintiff individually was entitled to an accounting. It was held that he was not. The conclusion was reached, either through proof that the firm of which he was a member was the party in interest, or by his failure to show that he was the party in interest. To my mind, it was no part of this litigation to take the accounts between the firm and the other parties.
Another difficulty is present. The appellant was not, on the face of his answer, entitled to an accounting between -the defendants Thomas Dusenbury and Benjamin Dusenbury, and the other parties, because the defendants Dusenbury were but two of the firm, of which the plaintiff was the third. The forms of procedure do not allow the prosecution of a joint claim
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against parties who do not appear jointly as defendants or as plaintiffs. The provisions that allow a plaintiff, under certain circumstances, to make defendants parties whom he alleges are jointly interested with him, do not apply to such a case as this. The appellant’s remedy was to bring an action in which the members of the firm of Thomas Dusenbury & Co. should be defendants.
Judgment affirmed, with costs.
Speir, J., concurred.
Cases cited
- Norbury v. Seeley 4 How. Pr. 73 p. 485
- Kay v. Whittaker 44 N. Y. 565 at 576 p. 485