Clark v. Myers

Learned, P. J".: In Easterly v. Barber (3 Weekly Dig., 178), the Court of Appeals recognized the doctrine that at law a surety might sue a co-surety separately for his proportion of the liability paid; and that in equity an action might be brought against all, and contribution might be adjudged among the solvent parties. And it is not doubted that in some f oim, either at law or in equity, the plaintiff in this case should have contribution. The only question is, may he sue one stockholder at law for his proportionate part, or must he sue all in equity. The right of suing a co-surety for a proportionate part of money paid, will be found to have been applied to cases of liability growing out of one single transaction of mere suretyship. (Cowell, Admr., v. Edwards, 2 B. & P., 268; Beaman v. Blanchard, 4 Wend., 432; Parker v. Ellis, 2 Sandf. [Sup. Ct.], 223.) While, in the present case, the position of the plaintiff and defendant has been held to be substantially that of partners (Bailey v. Bancker, 3 Hill, 188), at least to the extent of these debts owing to laborers. (Richardson v. Abendroth, 43 Barb., 162; see as analogous, Wiles v. Suydam, 64 N. Y., 173.) And it has been said that the stockholders were answerable, as original and principal debtors, to the creditors of the company. (Corning v. McCullough, 1 N. Y., 76.) It is evident that the plaintiff and defendant are not mere sureties on some single transaction, as the parties were in Coburn v. Wheelock (34 N. Y., 440). They, and others with them, are substantially partners; liable, not for a single debt of some principal debtor, but for a class of debts which may be large; and it is doubtful whether the stockholders are, in [610] any sense, sureties of these debts. Of course, there may be a right of contribution between persons other than co-sureties; that is, between principal debtors. But it is familiar doctrine that a partner cannot sue his co-partner for their respective shares of money paid by him to a- creditor. For there must be an account of all the partnership affairs, in order to bring into the inquiry what each has paid. (Story on Part., § 221.) It is not an answer to these views to say that no proof exists (as the case now stands) that any other stockholder has paid a creditor. The point is that the plaintiff and defendants, with other persons, have been held to be co-partners in regard to this class of debts. They are engaged in a common enterprise. Por this class of debts, arising therein, all are jointly and severally hable. The nature of the liability assumes that there may be many such debts. Some may have been paid by one stockholder, some by another. And all have been paid towards the common benefit. All this presents a case very different from that of a single liability of several persons (either as principals or as sureties), arising out of no community of property or of interest; like the case cited by Lord Kenyon, in Child v. Morley (8 T. R., 614). The judgment should be affirmed, with costs. Present — LeaeNed, P. J., Booxes and BoaedhaN, JJ. Judgment affirmed, with costs.