Owen v. Conner , 33 N.Y. St. Rep. 144 ( 1890 )

Per Curiam.

The defendants were sued as joint debtors, and the trial judge submitted to the jury the question whether there was a joint obligation or not; in other words, whether "the defendants were partners. The plaintiff’s counsel requested the court to charge that if Mr. Conner was carrying on business himself, and not as partner of the co-defendant, he was liable on the cause of action established. The trial judge declined so to charge, because the action was not brought against Conner individually. This was error. The Code has modified the common-law rule that, in an action upon an alleged joint contract, the plaintiff must recover against all the defendants or be defeated in the action, so that now a verdict may go against one in favor of the other. Code, § 1204; Brumskill v. James, 11 N. Y. 294; and see notes to Bliss, Code, under § 1204, supra. Under the rule established by the Code, the plaintiff was entitled to a verdict against Conner whether the liability established against him was a joint or individual obligation, and the only question to be determined was whether there was a liability against him in either form. It follows that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.