Majority
p. 118The People, ex relatione Coulter, vs. New-York C. P. ALBANY, June, 1838.
Headnote
■In a suit against the maker and endorser of a promissory note, sued jointly under the statute, where a general verdict is found for the defendants, if on a motion for a new trial, the court are of opinion that the verdict is wrong as to the maker, but right as to the endorser, they should permit the verdict to stand as to the latter, and allow him to enter judgment thereon in his favor, and grant a new trial only as to the maker; and when instead of doing so, a court of common pleas set aside the verdict as to both defendants, this court awarded a mandamus directing the C. F. to vacate the order for a new trial as it regarded the endorser, and to proceed and render judgment in his favor.Motion for mandamus. Prime brought an action in the New-York common pleas against Plympton, the maker, and Coulter, the endorser, of a promissory note. The defendants pleaded severally. The defence was usury, and the jury found a verdict for the defendants. On a case made by the plaintiff, the cotpmon pleas set aside the verdict and ordered a new trial,.on the ground that this was business paper, and, valid against the maker, notwithstanding the alleged usury in negotiating the note to the plaintiff. Coulter, the endorser, insists that the verdict, being right as to him, the court should have allowed it to stand, as it respected him, and only have ordered a new trial as against the maker; and on this ground he prays a mandamus.
A. J. Colvin, moved ex parte.
By the Court,
We have given a liberal construction to the statutes authorizing the holder to proceed against several parties to a bill or note in one action
p. 119
I think the court should have ordered a new trial as against the maker only, and allowed the endorser to proceed to judgment on the verdict in his favor. instead of bringing separate suits, as was necessary at the common law. Statutes, sess. of 1832, p. 489, and sess, of 1835, p. 248, The plaintiff may sever the action and proceed to judgment against one party, when an obstacle is interposed by another; and I think the statute should be so construed as to authorize the severance of the action whenever that course is necessary to protect the rights of one or more of the defendants. Had the indoi~ser been sued alone, the verdict in his favor would not have been disturbed. As I understand the opinion of the court below, the only ground for ordering a new trial so far as he is concerned is, that he was sued jointly with the maker, who made out no defence.
Alternative mandamus granted.