Orr v. McEwen , 23 N.Y. Sup. Ct. 625 ( 1879 )

Per Ouriam:

The mode of entering judgment against joint-debtors, where all have not been served, is regulated' by section 136 of the Code of Procedure, which is still in force. (Throop’s Code of Civil Procedure, 735.) Where all have been served, Judgment must be entered against all, and the provisions of section 136 do not allow separate judgments. The only question on this appeal is whether both of the joint-debtors, against whom the action is brought, had been served within the meaning of the Code, at the time the judgment sought to be set aside was entered. One of them, the appellant, had been personally served; the other had been served by substituted service. By sections 435 and 436 of the Code of Civil Procedure provision is made for substituted service in the cases therein mentioned, and section 437 declares the effect of sucji service. It provides that “ on filing an affidavit showing service, according to the order, the summons is deemed served, and the same proceedings may be taken thereupon as if it had been served by publication, pursuant to an' order for that purpose.” The effect of this provision is to make the service described in the order for substituted service equivalent to service by publication, and the result is that the defendant, on whom such service is made, is in default at the expiration of twenty days from the time of making the service. It is equivalent, therefore, so far as it affects the right to enter judgment against joint-debtors, to personal service, and no judgment where one or two joint-debtors have been served personally, and the other by substituted service in accordance with an order, can be entered against the one personally served; and the plaintiff must wait the expiration of the time to answer of the one last served.

The judgment in this case was therefore irregular, and must be set aside; but as the question of practice is new, and was deemed doubtful by the court below, we think no costs, either of the motion or of this appeal, should be allowed. ^

Present — Davis, P. J., Beady and ÍNGalls, JJ.

Judgment set aside, without costs of motion, or of this appeal.