Levin v. Haas ( 1881 )

Hardin, J.:

Action against the makers and indorser was proper, and it was allowable to join such parties. (Code of Civil Pro., § 454.) Section 456 provides that when any such parties make default the plaintiffs may “ take judgment against one or more of them, where he would be entitled to judgment, if the action was against him or them alone.”

Then follows a provision for a continuance of the action against the “ other defendants.” An order is to be entered by the clerk “upon the plaintiff’s application.”

Such an order we understand was entered in this case while the defendants Haas and Klein were in default, and when judgment was taken against them. "When their default was opened and they allowed to defend the efficacy of such order was taken away. The action then became one provided for by section 454, and to all intents and purposes was such an action as the plaintiff by that section was authorized to bring against all persons liable upon the instrument in suit. (Freiot v. Adams, 3 How., 138; Pratt v. Allen, 19 How., 450.)

Being such an action, so provided for by section 454, the prohibition of section 3231 applies, and costs other than disbursements cannot be recovered upon the final judgment by the plaintiff in more than one action.

Nor does this case come within section 499 of the Code of Civil Procedure; nor within section 511 of the Code of Civil Procedure ; nor within the provisions of section 1220 of the Code of Civil Procedure.

"We are of the opinion that the Special Term properly decided the question presented, and must therefore affirm its order, with ten dollars costs and disbursements.

Smith, P. J., concurred; IIaigi-it, J., not sitting.

Order appealed from affirmed, with ten dollars costs and disbursements.