Hauck v. . Craighead

*436 Ajílen, J„ 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. Hnless 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, 17 N. Y., 354; Richter v. Poppenhausen, 42 id., 373; Pope v. Cole, 55 id., 125.) If, therefore, as is claimed by the plaintiff, Harrison and Pike were both original obligors and contractors, and therefore principal and joint debtors as between them and the plaintiff, the complaint was properly dismissed as to the execuors of Pike, upon the ground of misjoinder. If Pike was a mere surety for Harrison, then by the death of the surety his estate was absolutely discharged from all liability upon the joint obligation, both at law and in equity, and no action could be maintained against his representatives, either severally or jointly with Harris on. (Getty v. Binsse, 49 N. Y., 385 ; United States v. Price, 9 How. [U. S.], 92; Risley v. Brown: * ) Whether, therefore, Pike, the testator, was a principal or surety in the contract of hiring, the complaint was properly dismissed as against his representatives. There are other serious difficulties in the way of the plaintiff’s recovering in this action, but as the nonsuit must be sustained for the reason already suggested, they will not be con sidered. *437 The order granting a new trial must he reversed, and the judgment at Circuit affirmed. All concur. Order reversed, and judgment affirmed. Footnotes [*] Ante p. 160.