¶1The judgments recovered by the members of the firm of Clark & Bro. would not necessarily show that a partnership existed between them. They were all proper parties to the foreclosure. Prima facie they were necessary parties. A service upon one only of them would not suffice to extinguish the rights of the others, without the aid of extrinsic proof. The plaintiff’s attorney applied to appellants to voluntarily appear in the action for the absent defendants. When that request was refused the plaintiff was entirely in his right in publishing the summons to bring them in. The appellants are in error in their contention that there has been no “settlement” of the action. The plaintiff has received his money. If he has not discharged the cause of action, it is because, at the instance of appellants, the plaintiff was required to assign the cause of action. We think that is a settlement of the action, within the meaning of the'statute. The taxation was right, and the order appealed from is affirmed, with $10 costs and disbursements.
13 N.Y.S. 452
Chevers v. Damon
Decided February 11, 1891
New York Supreme Court · decided 1891-02-11
Action by Julia F. Chevers against Carrie M. Damon and others to foreclose a mortgage. After the mortgage was recorded defendants John Clark, Stewart Clark, and William Clark obtained judgments against the mortgagor, which were duly docketed. Said defendants were made defendants in the action for foreclosure, personal service was had on William Clark, and the other two were served by publication.
Decided 1891-02-11