Cridler v. Curry , 44 How. Pr. 345 ( 1873 )

Talcott, J.

This is an'action brought upon an administrator’s bond, which has been assigned to the plaintiff by the surrogate of Steuben county, to be prosecuted under the act of 1837. The bond is joint and several, executed by the defendants and two other persons. The points presented by the demurrer are two: 1st. That the action cannot be maintained by the plaintiff, but should have been brought in the name of the people, who are the nominal obligees. 2d. That the .bond being joint and several, all or only one, of the obligors must be sued. As to the first point, we think the decision of the Special Term was correct, and that under the circumstances the action may be maintained by the plaintiff in her own name. (Thayer v. Clark, 48 Barb. 243.) Section 113 of the Code, authorizing the trustee of an express trust to sue, is merely permissive, and does not prevent the real party in interest from suing under § 111. The case of The People v. Norton, (9 N. Y. 176,) and the other cases referred to by the plaintiff, where actions of this kind have been brought in the name of the people, only hold that the action may be maintained in that form under § 113.

Upon the second point we think the Special Term erred. There is no question but what before the Code joint and several obligors must have been sued either all jointly or each one severally. In other words, the plaintiff was bound to treat the obligation either as joint or several. But § 120 of the Code expressly provides that persons severally liable on the same obligation or instrument may all or any of them be included in the same action, at the option of the plaintiff. This rule was first by statute applied to commercial paper, in’ 1837. By the Code, however, the principle is extended to other obligations and instruments. It was early decided by the General Term of the Eighth District that, under this section, two of three joint and several obligors may be sued. The same point is stated by Willard, J., in De Ridder v. Schermerhorn, (10 Barb. 638.) The rule in Brainard v. Jones was admitted by Mullin, J., in delivering the opinion of the General Term of the Fifth District in Strong v. Wheaton, (38 Barb. 616,) and was also referred to as correct by Denio, J., in Carman v. Plass, (23 N. Y. 286.)

[Fourth Department, General Term, at Buffalo, January 7, 1873.

The defendants are two of the parties who are severally liable on the same obligation, and are therefore within the express language of § 120. Upon this ground the order sustaining the demurrer is reversed, with leave to the defendants to amend within twenty days, on payment of costs.

Mullin, P. J., concurred.

E. D. Smith, J., having made the .order appealed from, did not sit.

Mullin and Talcolt, Justices.]