33 How. Pr. 80 | N.Y. Sup. Ct. | 1867
The defendant may demur to the complaint,
But for two or three decisions hereafter noticed, I should not have hesitated to decide promptly, that this demurrer was well taken. The contract upon which the action is founded, is joint and not several, and Balcom has a right to have his co-contractor made a party to the action. It is said that the defect of parties does not appear upon the face of the complaint, because it does not appear that Skiff was living at the time the action was commenced, and if he was not living, then the action was properly brought against Balcom upon the joint undertaking, and that it was unnecessary for the plaintiffs to say in their complaint, whether Skiff was living. The complaint shows that he executed the contract, and the presumption is that he is still living, not that he is dead. It was, however, held in this district, in Brainard agt. Jones (11 How. 569), that the objection to the complaint for non-joinder of a party, could not be taken by demurrer, unless the complaint shows that the party omitted was living when the suit was commenced; that such fact must appear affirmatively ; and when it did not so appear, the objection should be taken by answer. This position is authorized by Burgess agt. Abbott (1 Hill, 476, S. C.; in the Court for the Correction of Errors, 6 Hill, 135). The question was between a demurrer and a plea in abatement, and the opinions delivered show much conflict in the authorities, and much doubt in the judges delivering the opinions. The decision was under the old system of pleading. The Code, howeverj provides that when the matters for which a demur-' rer will lie, do not appear upon the face of the complaint, the objection may be taken by answer.
In Brainard agt. Jones, the obligation was joint and several, and the decision of the court overruling, the demurrer, was undoubtedly correct. The remarks of the learned justice upon the question we are considering, were not necessary to the decision of the case. It was decided in September, 1855, by the general term.
Scofield agt. Van Syckle (23 How. 97), is in point. It is a
Understanding Zabriskie agt. Smith, as I do, it is a direct authority in favor of this demurrer. This case was not decided when Brainard agt. Jones was decided, and I think that the attention of the court could not have been called to it in Scofield agt. Van Syckle (supra).
If one of the parties to a joint contract is deceased when the action is commenced, the fact should so appear in the complaint.
There must be judgment for the defendants upon the demurrer, with leave to the plaintiffs to amend their complaint.