Nathan v. Zierler

223 A.D. 355 | N.Y. App. Div. | 1928

Per Curiam.

The plaintiff brought this action against the defendants to recover for goods sold and delivered to them, alleging that defendants were copartners. The defendant Zierler made default in answering; defendant Eagle interposed an answer admitting the copartnership but denying on information and belief all other allegations of the complaint. Plaintiff entered judgment on default against Zierler and issued execution. The latter moved to set aside the judgment. The motion was denied and he has appealed.

The order must be reversed. If the obligation was several the action might have been severed and judgment entered against one and the action continued against the other. (Civ. Prac. Act, §§ 96, 475.) There was no authority to enter judgment against one without severance, and no application was made for such relief. If made it would have been unavailing in this case, for the obligation was joint. (Partnership Law, § 26, subd. 2; Seligman v. Friedlander, 199 N. Y. 373.) Where the complaint alleges that two or more defendants are jointly indebted upon a contract obligation if the summons is served upon one or more but not upon all the plaintiff may proceed against those served with process, unless the court otherwise directs, and final judgment, if recovered, may be taken against all defendants there jointly indebted. (Civ. Prac. Act, § 1197.) These provisions seem to measure the authority of a plaintiff to enter judgment against one of several defendants joined in the action. If the defense interposed by the defendant Eagle was sustained, then the obligation being joint, plaintiff would not be entitled to judgment against the partner in default. Until the validity of the defense is determined judgment cannot be entered against the defendant in default. (Catlin v. Latson, 4 Abb. Pr. 248.)

We think the plaintiff has mistaken his remedy. If he has a valid claim, he should move to strike out the answer as sham or for summary judgment. (Rules Civ. Prac. rules 103, 113.)

The order should be reversed on the law, with ten dollars costs and disbursements, and the motion to vacate the judgment granted, with ten dollars costs.

Van Kirk, P. J., Hinman, Davis, Whitmyer and Hill, JJ., concur.

Order reversed on the law, with ten dollars costs and disbursements, and motion to vacate the judgment granted, with ten dollars costs.