Prince v. Cujas , 7 Rob. 76 ( 1868 )

Robertson, Ch. J.

This is an action against joint contractors, judgment having been recovered in a prior action .in the Marine Court of this city against both, upon a service of summons upon one only. The causes of demurrer, assigned, are a want of jurisdiction, another action pending, an insufficiency of facts to constitute a cause of action. It does not appear there is any other action pending; the former one being ended by judgment. The 375th section of the Code, applies only to courts of record, (14 Abb. Pr. 421;) and even if the Marine Court came within its purview, it does not supersede the remedy by action. (Dean v. Eldridge, 29 How. U. S. 222.) It is more than doubtful whether the first judgment is one in personam as regards the party not served, so as to require an application for leave to sue, under section 71 of the Code. (Id. 221.) If it were, the omission to set up such leave is not cause for demurrer, the "remedy being by motion to set aside the complaint or summons. (Finch v. Carpenter, 5 Abb. 225.) The addition of the defendantCujas, is not made ground of demurrer, -even if tenable. (Id. 224.)

The demurrer must be overruled, and judgment given for the plaintiff) with costs, with leave, &e.