Bank of Genessee v. Field
New York Supreme Court
Motion, to set aside judgment for irregularity and on the ground of merits. The plaintiffs were the holders of a joint and several promissory note, made by Collins, Cogswell and Field, and endorsed by Davis. The makers and the endorsers were sued in one action under the statutes of 1832 and 1835. Collins, one of the makers, pleaded; the two other makers, and Davis, the endorser, severally suffered default.
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Motion, to set aside judgment for irregularity and on the ground of merits. The plaintiffs were the holders of a joint and several promissory note, made by Collins, Cogswell and Field, and endorsed by Davis. The makers and the endorsers were sued in one action under the statutes of 1832 and 1835. Collins, one of the makers, pleaded; the two other makers, and Davis, the endorser, severally suffered default. The plaintiffs thereupon severed the action, and perfected judgment against the three defendants who had suffered defaults, which Field now moved to set aside.
1Opinion of the Court
By the Court,
Bronson, J.
Where all the parties to a note or bill are joined in one action, the plaintiff, on a default by one party, as the maker, drawer, endorser or acceptor, may sever the action, and proceed to judgment against the party who suffers a default, in the same manner as though he had been sued alone. Laws, 1832, p. 489, §1,4. Laws, 1835, p. 248, § 2. But the action cannot be severed in relation to joint contractors. If there be two or more joint makers, *644endotsers, &c., the plaintiff cannot take judgment against one, until he is entitled to judgment against all.
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