Chevers v. Damon

New York Supreme Court

Chevers v. Damon

13 N.Y.S. 452, 37 N.Y. St. Rep. 904, 59 Hun 619, 1891 N.Y. Misc. LEXIS 1177

DecidedFebruary 11, 1891

StatusPublished

This text of 13 N.Y.S. 452 (Chevers v. Damon) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chevers v. Damon, 13 N.Y.S. 452, 37 N.Y. St. Rep. 904, 59 Hun 619, 1891 N.Y. Misc. LEXIS 1177 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Pratt, J.

The 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.

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Pratt, J.

The 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.

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Bluebook (online)

13 N.Y.S. 452, 37 N.Y. St. Rep. 904, 59 Hun 619, 1891 N.Y. Misc. LEXIS 1177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chevers-v-damon-nysupct-1891.