Rosenberg v. Boehm

TRUAX, J. In Garrison v. Garrison, 67 How. Pr. 271, the defendant who had been served with a summons offered to let the plaintiff take judgment against himself and the defendant who had not been served with summons. This offer was signed by an attorney, who appeared as the attorney for the defendant who had been served. The offer was accepted, and judgment was entered against both defendants. The defendant who had not been served moved to set the judgment aside upon the grounds of irregularity and collusion. In Rich v. Roberts, (City Ct. N. Y.) 10 N. Y. Supp. 915, the motion to vacate judgment was made by the defendant who had not been served and who denied any indebtedness. The court said that the judgment was fraudulent. In the case at bar the indebtedness of the defendants is conceded, and the act of one defendant in offering to allow judgment was ratified by the other defendant. It was said in Binney v. Le Gal, 19 Barb. 592, that one partner cannot, without the assent of his copartners, make an offer on behalf of himself and his copartners to allow judgment. This is, in effect, saying that with the assent of his copartner he may make such an offer; while in Weed v. Bergstresser, 2 N. Y. Law Bul. 55, it was held that, where copartners are served, an offer to allow judgment 937 is not within the power or authority of one of them unless _ there is evidence that the other party approved or ratified it. But it was expressly held in Emery v. Emery, 9 How. Pr. 130, that one defendant, a joint debtor, served with process, may, by an offer to allow judgment, bind his codefendant, not served, as to joint property. See Paton v. Wright, 15 How. Pr. 489. In the case at bar the indebtedness is conceded, and both of the defendants are willing to allow the judgment to stand. I see no reason why it should be set aside at the suit of another creditor of the judgment debtor. Judgment is ordered for the defendants, with costs.