38 N.Y. 39 | NY | 1868
The common law has been changed by the Code as to the mode of securing any advantage that may be derived from a defect of parties plaintiffs or defendants. By the latter, when the defect appears upon the face of the complaint, the objection can only be raised by demurrer to the complaint, and if the defect does not so appear, by answer; and unless the objection is so taken it is deemed to have been waived. (Code §§ 144, 146, 147 and 148.) This has been repeatedly so held by this court in reported cases. This shows that the defendant could not give in evidence the interest of Whitman as partner with the plaintiff in the demand for services rendered in the Slocum suit in bar of a recovery of that demand. It is suggested, by the counsel for the defendant, that the rule ought not to be applied in this case, for the reason that the defendant could not determine from the complaint that this demand would be claimed by the plaintiff in this action. If this be so, the remedy of the defendant was, either to apply to have the complaint made more specific, or to obtain a bill of the particulars of the plaintiff's demand. The question remains, whether the evidence was admissible to restrict the recovery to the amount of the plaintiff's interest in the demand. The interest of the plaintiff was that of a partner, and extended to the entire demand. Payment of the whole to him would have discharged the defendant as to *40
both partners. A recovery of the whole in this action by the plaintiff will have the like effect. Under such a state of facts it was held by this court, that, when the action was in tort by one party jointly interested with another in the subject-matter, a recovery might be had for the entire demand. (Zabriskie v.Smith,
Nevertheless, there being no legal error in the case, the judgment must be affirmed.
Judgment affirmed, but upon other grounds than those stated in opinion. *42