134 N.Y. 170 | NY | 1892
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *172
It is the rule of the common law recognized and enforced by the courts of this state, except as modified by section 1278 of the Code of Civil Procedure, that a judgment rendered against one of several joint debtors in an action against him alone is a bar to an action against the others. (Candee v. Smith,
Section 1278 of the Code of Civil Procedure provides that in case of a confession of judgment by one or more joint debtors, judgment may be entered and enforced against them, "and it is not a bar to an action against all the joint debtors upon the same demand." That section is not in terms applicable to the situation before us, but it is instructive as indicating a legislative intent to limit in some measure the common-law rule. This court had before it in Harbeck v. Pupin (
In Suydam v. Barber (
Now, this plaintiff did not elect to proceed to judgment against Adams alone. Adams Young were parties defendant, and a joint judgment was rendered against them. And the recitals in the judgment indicate that the plaintiff was at the time of its entry entitled to judgment against both defendants. Subsequently, it is true the judgment was vacated as to the defendant Young, and he let in to answer. But this was not on plaintiff's motion. On the contrary, he opposed it. He insisted on the right to retain his judgment against both defendants, and the determination of the court to open the judgment as to one of the defendants, and let him in to contest his liability, cannot be deemed an election by the plaintiff to extinguish the cause of action which the court, by its order, said the defaulting defendant might litigate.
The record does not contain the motion papers, and we are, *174 therefore, in the dark as to the ground upon which the Special Term based its decision vacating the judgment as to Young, and letting him in to contest the cause of action alleged in the complaint. So far as this record discloses, he had no defense at the time when the motion was made. Certainly, the court did not intend that the order granted should create a defense where none existed, nor can such an effect be given to it.
The judgment should be reversed.
All concur.
Judgment reversed.