Platner v. Johnson & Wheeler , 3 Hill & Den. 476 ( 1842 )

By the Court, Co wen, J.

This was not a joint action against different parties under the statute, but against several makers of the note whom the plaintiff has chosen to sue jointly. In such case there is no right to sever the action and take judgment against one of the defendants. (Bank of Genesee v. Field, 19 Wend. 643, 4.) If there were such right, it is by no means clear that an affidavit by one of them would not be sufficient for the mere purpose of upholding the plea. It is very rare in such case that a defence complete for one defendant is not equally so for the other. In this case, however, the action must go on as it has begun ; and it would be too nice, in a matter of defence against a joint contract, to require that the plea should be verified by all the defendants.

Another fatal objection to the default is, that the plea was retained and the default entered without giving notice of the defect to the defendant’s attorney. (Wirts v. Norton, 25 Wend. 699 ; City of Buffalo v. Scranton. 20 Wend. 676.)

Motion granted.