Hyde v. Van Valkenburgh

Dalt, F. J. I agree that the order made at Special Term should be reversed. The cases of Bovill v. Wood, 2 M. & S., 23, and Slocum v. Hooker, 13 Barb., 536, and Wilmsby v. Linclenberger, 2 Rand., 478, are decisive upon the point that a plaintiff cannot anticipate that a defendant will avail himself of a defence of this character. He may have another defence to the note, and if he have, and establish it, he may plead the judgment as a bar to any other action, an advantage of which he would be deprived, if the plaintiff were allowed to bring the action against the other co-partner alone. The contract is a joint one, and no inconvenience can arise from requiring the plaintiff to bring the action against both partners, for if Cooper should set up the Statute of Limitations, a defence of which he may or may not avail himself, the plaintiff would be allowed to discontinue as to him, without costs (Ex parte Nelson, 1 Cow. R., 117; 2 Rev. Stat., 616, § 20; Code § 306 ; Ludlow v. Hackett,18 Johns., 252; Slocum v. Hooker, 13 Barb., 540). The order should be reversed. [419] Brady, J. The allegation intended to justify the omission to make the defendant Cooper a party, is not broad enough. Assuming it to be a sufficient statement that he was not absent from the State, and therefore that the running of the Statute of Limitations was not intermitted, it is deficient because it does not also state that he neither made a payment, which prevented the operation of the statute named, nor a new promise to pay. It does not follow from a mere expiration of six years, that the remedy of the plaintiffs against Cooper was destroyed, and it is the right of the other defendant to have him joined, unless he has been discharged by law. That the legal obligation of Cooper has ceased, if it form a basis of proceeding against Ins co-partner alone, must appear by averments which lead to no other conclusion. For these reasons I think the order at Special Term should be reversed with ten dollars costs, to abide the event of this action. Cardozo, J., concurred. Order reversed.