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46 How. Pr. 467

Saxton v. Dodge

New York Supreme Court

Decided June 15, 1873

New York Supreme Court · decided 1873-06-15

<p>In an action against three defendants who were .copartners and for a partnership debt, who appear and answer by the same attorneys and by a joint answer, and two of the defendants have compromised and settled their proportion of the joint liability, a notice of trial served by the plaintiff in the action, in the ordinary form upon the surviving attorney, the other having died, with a notice indorsed on the same, to the effect “ that no personal claim is or will be made on the trial of the cause as against the defendants who hem compromised, either for damages or costs, and that judgment uM be demanded only as against the defendant who bias not settled for the amount of damages and costs for which he may be liable,” is regular as to all the defendants.</p> <p>And where, on the trial of the cause under such notice, the attorneys for the defendants announce that they appear on the trial only for and in behalf of the defendants who have compromised, and not for the other defendant, a verdict against all the defendants, and the judgment entered thereon against all the defendants, is a verdict regularly rendered and a judgment regularly entered as against all the defendants. The proceedings on the part of the plaintiffs in procuring judgment in such a case are regular.</p> <p>Such verdict and such judgment is not taken by default as against the defendant who has not Compromised, or as against the defendants who have compromised.</p> <p>A motion on the part of the defendant who has not compromised, made more than a year after the judgment was entered, and he had notice of it, to set aside the judgment as against him for irregularity, is too late. Where the agreement for .the compromise or composition of the joint liability of the defendants in an action, pending in this state, is made in Ohio, the agreement is to be construed by the laws of New York and not by the laws of Ohio.</p> <p>It is no defense to the defendant who hafe not compromised that the other defendants are discharged from their proportion of the joint liability; it appearing that the agreement was made and discharge given after the copartnership was dissolved.</p> <p>Such a composition or compromise with two of the defendants and joint debtors does not discharge the other defendant and joint debtor. His liability continues.</p>

Cited by 2 later decisions — most recently October 1889

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1873-06-15

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James C. Smith, J.

¶1The motion is based on an alleged irregularity in the proceedings on the part of the plaintiff, and is also addressed to the discretion of the court.

¶2The alleged irregularity is the want of due notice of trial. But the notice served on Mr. Sittser, the surviving attorney of the defendants, after the death of his partner, was regular and sufficient. The plaintiff’s proceedings were regular, and, if they were not, the motion to set them aside for irregularity is too late, more than a year having elapsed since the payment was rendered, and the defendants had notice of it.

¶3So far as the motion is addressed to the discretion of the court, the principal ground urged for it is that the defendant ought to have an opportunity to set up in his answer the discharge of his copartners. To this there are insuperable objections.

¶4In the first place, it is not probable that the matter alleged wpuld constitute a defense if it were pleaded. The compromise between Saxton and Dodge, though made in the state of Ohio, was made in view of the laws of this state, and there can be no doubt, that in consideration of all the circumstances attending it, its effect is to be determined by the laws of this state. The papers read on this motion show very satisfactorily that when the compromise was made, the partnership had been dissolved. That .being the case, the *478compromise was valid under the laws of this state, and did not discharge Stevenson from his liability. (Laws 1838, chap. 257.)

¶5But waiving the question of the merits of the proposed defense, the delay and the conduct of the defendant with reference to the compromise, have been such that he ought not to be permitted to set it up at this late day, as matter of favor. His correspondence shows that he was informed of the compromise soon after it was made, and several months before the trial. Also, that he was informed of the trial and its result, in the fall of 1870. No satisfactory excuse is shown for his neglect to move in season. The claim that he was ignorant of the legal effect of the compromise, is no excuse. It appears very clearly, by his own letters, that when he was informed of the compromise, he acquiesced in it, and executed certain promissory notes with the intention of delivering them to Saxton for the purpose of carrying out the compromise. Afterwards he recalled the notes, and declined to deliver them, on the sole ground that he was unable to pay, and, as late as the 26th of September, 1870, he wrote to plaintiff, promising to pay him when able. That letter was written several days after- the causes were noticed for trial, and from its tenor and other circumstances, disclosed by the papers, it is apparent the defendant was informed of the fact that the causes had been noticed when he wrote the letter. In short, the case looks as if the defendant, having full knowledge of the compromise and of the plaintiff’s proceedings in the action, made up his mind that it was useless to defend, as he was unable to pay, and the plaintiff would be unable to collect any judgment he might recover.

¶6In addition to all this, is the circumstance that an action in equity has been commenced against Stevenson and others, to enforce the judgments, in which action Stevenson appeared and joined issue, as long ago as in November, 1871.

¶7Motion denied, with ten dollars costs.

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