Heatter v. Day Publishing Co.

181 A.D. 888

Opinion

Although by the contract sued upon the defendant engaged both Heatter, the plaintiff, and one Seidman, who is not here joined, the compensations were to be payable separately. Though the contract repeatedly recited the parties engaged as “ said copartners,” the fact of such copartnership did not appear in the terms of the contract of employment. Plaintiff, therefore, could sue for his separate damage by his dismissal. The contract, while joint in form, was several in interest. (Villard v. Moyer, 123 App. Div. 629; 9 Cyc. 704, 705.) Even if they were partners, defendant had agreed to pay each for his separate earnings or commission, which severed the rights to sue. (Austin v. Walsh, 2 Mass. 401, 405.) The order granting plaintiff’s motion for judgment is, therefore, unanimously affirmed, with ten dollars costs and disbursements. Within ten days, however, defendant may withdraw its demurrer, and answer, on payment of costs, including the costs of this appeal. Present — Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ.