67 N.Y. 432 | NY | 1876
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The plaintiff has elected to charge the original defendant, Pike, as a joint contractor and debtor with Harrison, and unless they were joint obligors and thus joint debtors, the action would necessarily have failed had Pike continued to live. By his death the action abated as to him, and his personal representatives have been substituted as defendants jointly with the survivor, Harrison. Unless the action could have been brought against the surviving debtor, together with the personal representatives of the deceased debtor, the executors of Pike were improperly substituted and joined as defendants with Harrison, the survivor, and the action cannot be maintained. The question is the same as it would have been had Pike died before the commencement of the present action, and the plaintiff had sued the executors and Harrison jointly. Such an action could not have been maintained, unless the plaintiff had avered in her complaint her inability to procure satisfaction from the survivor. (Vorhis v. Childs,
The order granting a new trial must be reversed, and the judgment at Circuit affirmed.
All concur.
Order reversed, and judgment affirmed.