Wooster v. Chamberlin

By the Court, E. Darwin Smith, J. The complaint in this’ action states that the defendant was one of the attorneys for the recovery of a judgment in favor of Eoyce against Hooper, which it claims was paid to the defendant. The money which it is claimed was received by the defendant, by the plaintiff’s own showing, was received by him as one of a partnership, composed of two or more attorneys. The answer sets up that the said partnership was composed of the defendant and James Wood, jun., who are jointly liable to the plaintiff for such money. The answer sets up a perfect defense in the non-joinder of Wood as a co-defendant. The only exception which could have been taken to such answer on demurrer, is that it does not aver that said Wood was still living. This defect was entirely cured by the proof on the trial. The said partner, Wood, was called as a witness, and fully proved the answer, without dissent or objection. After full proof of the answer and all the facts essential to sustain the defense, it was too late to overrule this answer or the defense interposed by it, on the technical ground that the answer did not contain the averment that Wood was still alive. The objection should then have been disregarded by the referee, or the answer allowed to be amended, to conform to the proof. It is the right of a party who is sued, to require that any other person jointly [605] liable with him. for the debt shall be made a co-defendant. The omission of a plaintiff to sue all the joint contractors maybe set up as a defense, and is a complete defense to the suit. The non-joinder is matter to be set up in bar of the action, and is to be treated like any other valid defense. (Leavitt v. Tuttle, 4 Kern. 465.) The referee clearly erred in overruling the defense in this case, and the judgment should be reversed and a new trial granted. [Monroe General Term, December 6, 1858. Welles, Smith and Johnson, Justices.] Hew trial granted; costs to abide the event.