Utica Clothes Dryer Manufacturing Co. v. Otis

44 N.Y. Sup. Ct. 301

Opinion

Haedin, P. J.:

Pendency of another action in the District Court of the United States for the same cause of action, resting upon a service of summons upon Herenden, one of the defendants (no judgment having been entered in that action, and no attachment having been levied upon property), is not a bar to this action. In that action the defendants not personally served could not be, upon such service as was made on one defendant, personally charged.

This action, for aught that appeared in the papers used at Special Term, may be maintained. (Bowne v. Joy, 9 Johns., 221; Walsh v. Durkin, 12 id., 101; Burrows v. Miller, 5 How., 51; Cook v. Litchfield, 5 Sandf. Sup. Ct., 342.) This is not an action to enforce a judgment already recovered. The plaintiff does not rest upon or seek to recover upon a judgment already had. (Morey v. Tracey, 92 N. Y., 583.) Statutes which give a remedy to enforce a judgment, obtained by service upon one of the joint debtors, are cumulative, and do not by implication take away a party’s common-law right to enforce his debt. (Lane v. Salter, 51 N. Y., 1.)

In the case just cited Lott, Ch. C., says, of a judgment entered on service upon only one joint debtor, that “ it is no evidence of any personal liability, and does not constitute a debt against the party not served.” The same doctrine was asserted by Paeeee, J., for the "General Term of tbe sixth district in Dean v. Eldridge (29 How., 218; Code Civ. Pro., §§ 1932, 1933).

~We are of the opinion the Special Term onght not to have vacated the service of summons and onght not to have dismissed, the action.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. "

Follbtt and YaNN, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.