Sager v. Nichols

1 Daly 1

• Court: New York Court of Common Pleas
• Decided: July 1, 1859
• Status: Published

Opinion

By the Court.

Hiltox, J.—1.

For supplies furnished a vessel upon the order of the captain, while acting for the owners, the owner# are liable in solido, and a non-joinder of any part owner in an action to recover for such supplies may be-taken advantage of by jdea in abatement. Abbott on Shipping, 150, 151, (7th Am. Ed.); Parsons’ Mercantile Law, 338; Story on Partn. § 419 ; 3 Kent Com. 154, 155 ; Collyer on Partn. § 1226 ; Ward v. Green, 6 Cowen, 173.

2. The complaint averred the defendants to be owners of the vessel; it alleged a joint liability, and the plaintiff was required to provv a joint indebtedness. The evidence only showed two of the defendants named to be owners.

There was a clear misjoinder of parties defendants, which the appellant was entitled to take advantage of at the trial by his motion then made for a nonsuit. Graham’s Practice, 95; Harrington v. Higham, 15 Barb. 524; Robertson v. Smith, 18 John. 42)

5. In an action against joint debtors or obligors, where all are named as defendants, a several judgment cannot be given. Gilman v. Riv 10 Peters, 298; Robertson v. Smith, 18 John. 459, supra; May v. Roberts, 2 Bos. & Pul. N. S. 454; 1 Chitty Pl. 46, Am. Ed.; Code, § 136, sub. 1.)

Judgment rev#:=e J.