29 Barb. 549 | N.Y. Sup. Ct. | 1859
This action, and all the issues in it, were referred to Mr. Scudder to hear and determine, on motion of the defendants Birdsall and Mather, who now complain of the referee’s report, having taken, it is stated, “ more than one hundred exceptions to his decisions” in the course of the trial. These exceptions the plaintiff’s counsel has classified under various heads; some as “ unfounded some as “ nullitiessome as “ frivolous,” and some as “ simply nonsensical.” As they are all, or nearly all, more or less connected with the pervading one arising out of an alleged “ defect of parties,” I shall confine myself mainly to the examination of that question.
The defendants are five in number. The complaint alleges that they were “ partners in trade doing business under the firm name and style of A. Birdsall & Go.and that the goods for the price of which the suit is brought, were sold and delivered “ to the said firm of A. Birdsall & Co.in other words, to the five named defendants. Mather, in his answer, denies, first, any knowledge of the plaintiff’s claim, and alleges, in addition, that the firm, besides the five persons made defendants, consisted of Burr Higgins,, a resident of North Carolina, and George S. Runey, a resident of Massachusetts; and that the complaint, by reason of the omission of their names, is defec
The ancient practice in these cases was to outlaw the non-
Roosevelt, Clerke and Davies, Justices.]
It may be laid down, I think, as a sound proposition, that where joint debtors reside in different states, they may be sued separately in the respective states having jurisdiction of their respective persons or property, and that a judgment in such case, against one in one state, is no bar to a recovery against the others in another state.
As to the cost of the hundred exceptions, they were either unimportant, or if well taken when first stated, were superseded by subsequent testimony, mostly on the part of the defendants themselves.
Judgment for the plaintiff on the report of the referee affirmed, with costs.