Garrison v. Garrison

67 How. Pr. 271

• Court: New York Supreme Court
• Decided: June 15, 1884
• Status: Published

Opinion

Landon, J.

Section 738, Code of Civil Procedure, provides that the defendant may before trial serve upon the plaintiff’s attorney a written offer to allow judgment to be taken against him.

If there are two or more defendants and the action can be severed, a like offer may be made by one or more defendants against whom a separate judgment may be taken. What is “the like offer?” Clearly, that judgment may be taken against him who makes the offer, if separate judgment can be taken. There is no statutory authority allowing one joint debtor or partner to make an offer in behalf of his joint debtor or copartner.

Section 1932, allowing judgment to be entered in form against both joint debtors when only one is served, does not relate to judgments entered upon offers. Section 1278 relates to confessions of judgment, not to offers. The common-law power of one copartner to act as the agent of the firm is limited to the ordinary business -of the firm (Mabbett agt. White, 12 N. Y., 442). The offer made in this case involves a question of statutory practice. The statute does not allow it.

The judgments entered against both defendants must therefore be vacated and the same orders in the other cases, with costs (See Tripp agt. Sanders, 59 How., 379; Burney agt. Le Gal, 19 Barb., 592; Bredenbecker agt. Mason, 16 How., 203; Everson agt. Gehrman et al., 10 How., 301).