Hees v. Nellis

By the Court, Mullin, P. J.

The bond is in form payable to the obligees jointly, but the interest is several, and hence one may sue alone. (1 Chitty on Pl. 11.)

The promise to pay the plaintiff her proportion may not be founded on a new consideration so as to enable her to sue and recover upon it instead of the bond, yet it may be taken into consideration in determining whether the plaintiff’s interest is jointly with the other heirs or separately to herself. Upon the case, as it appears before us, I think the plaintiff was entitled to sue alone. (Van Wart v. Price, 14 Abb. 4, note. Homer v. Whitman 15 Mass. 132.)

If, however, we are wrong in this view of the case, we are of opinion that the defect of parties, if any, could not be taken advantage of by answer, but must be taken advantage of by demurrer.

Section 144 of the Code provides, that a defect of parties may be taken advantage of by demurrer. When the defect does not appear on the face of the complaint it may be taken advantage of by answer. (Id. § 147.)

The. complaint alleges that there were eight heirs to whom, by the bond, the money was payable. The language is, “there being heirs and eight heirs only, each of whom is entitled &c.” The complaint speaks in the present tense and refers to the time of verifying it. It is equivalent to an allegation that these seven other persons to whom this bond is payable are not joined and they are living.

It was said in De Puy v. Strong that it is only when evidence is necessary to make the defect apparent, that an answer setting up the defect of parties is permitted. In that case the plaintiffs alleged in their complaint that they owned portions of the land sought to be recovered which were less than the whole. Whether they gave the names of the other owners, or alleged they were living, is not stated, as it was held to be a case in which the defect should be taken advantage of by demurrer. All that it is said that the complaint contained is, that there were other owners of interests in the land besides-the plaintiff. Who they were, and whether they were living, was probably stated, as it was held that the defect could be, and should have been, taken by demurrer.

I think the averment in the complaint is equivalent to alleging that the persons not joined as plaintiffs were living. The judgment should be affirmed.

On the facts alleged and* proved on the trial, the plaintiff was entitled to costs; and although it would have been more in conformity to the established practice to have required the plaintiff to move for costs, yet the judgment should not be set aside when it appears that the right to costs was clearly established. Had the defendant’s counsel stated, in his affidavit for the motion to set aside the judgment, any fact showing that the plaintiff’s right to costs were even doubtful, there would have been some excuse for making the motion. But nothing whatever is shown on the subject, except the failure to conform to the practice. This would not justify the court in setting it aside, nor this court in reversing the order because it was not set aside.

[Fourth Department, General Term, at Buffalo, June 3, 1873.

Mullin, Talcotl and B. B. Smith, Justices.]

The order and judgment are affirmed, with costs of_ the appeal to be paid by the administrator personally.