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tends that the driver of the cab was not his servant, or in his employ, but that the driver hired the cab from him, paying therefor $2.50 per day, and that he said driver) kept all the fares collected.
Of course, before the defendant could be held liable for the negligence of the driver, it was necessary for the plaintiff to show the relationship between defendant and said driver, whether that of master and servant or principal and agent. King v. N. Y. C. & H. R. R. R., 66 N. Y. 181, 23 Am. Rep. 37; McInerney v. D. & H. C. Co., 151 N. Y. 411, 45 N. E. 848. It was only possible to charge the defendant with misconduct of the driver by producing some evidence showing the relationship of master and servant. This the plaintiff did not do by direct proof; but on examination of the driver, Bricca, said driver referred to the defendant as his "boss,” and further on in the said examination used the phrase "while I was working for defendant.” The jury, having before it this evidence, resolved by the verdict rendered that the defendant was the master who had the "supreme choice, control, and direction of the servant, and whose will the servant represented." See Shearman & Redfield on Negligence, § 160.
The plaintiff and his witness testified that defendant's driver conducted himself in such a negligent and reckless manner by driving the horse attached to the cab so that, when it struck the plaintiff, throwing him to the ground and injuring both of his kneecaps, he continued on his way without attempting to halt, alight, and see the extent of his act. The verdict was for $100, and as it was necessary to submit the questions of fact that arose on the trial to the jury, and as it resolved by the verdict in favor of the plaintiff, I will not disturb it, and therefore deny the motion.
Motion to set aside verdict and for a new trial denied. Defendant may have 10 days' stay of execution after notice of entry of judgment and 30 days to make and serve a case. Settle order on notice.
PECKHAM v. WENTWORTH et al.
(City Court of New York. Trial Term. January, 1909.) 1. ASSOCIATIONS (820*)—ACTIONS--PARTIES-DEFENDANTS.
Where a note is signed in the name of an unincorporated association, by its treasurer, plaintiff may, at his option, bring action thereon against the individual members of the association, as authorized at common law, or against the president or the treasurer of the association, as authorized by Code Civ. Proc. § 1923.
(Ed. Note.-For other Cases, see Associations, Cent. Dig. 88 36-40;
Dec. Dig. $ 20.*] 2. PARTIES (8 84*)—NONJOINDER-OBJECTIONS.
The objection to the nonjoinder of parties defendant is not sufficiently raised by a general denial.
(Ed. Note.–For other cases, see Parties, Cent. Dig. 88 134-142; Dec. Dig. & 84.*]
*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
3. PARTIES (§ 84*)-DETECTS-WAIVER.
Where the objection to the nonjoinder of parties defendant is not raised by demurrer or answer, it is deemed waived.
[Ed. Note. For other cases, see Parties, Cent. Dig. 88 134-142; Dec. Dig. $ 84.*] Action on a note by Reuben Peckham against George L. Wentworth and others. There was a verdict for plaintiff, and defendants moved to set the same aside. Motion denied.
Fitzgerald & Nehrbas, for plaintiff.
FINELITE, J. The plaintiff herein brought this action against George L. Wentworth, Elmore F. Austin, Eben E. Acker, H. H. Badenhauser, Malcom Baxter, Jr., Clinton Stevenson, Joseph Cipollari, John J. Egan, Frank O. Sauvan, Abraham L. McKensie, George Hiecke, Benjamin D. Jacobs, Charles G. Stevenson, Julius Tannenbaum, John P. Devane, E. J. Connelly, John M. Waldron, E. H. Wilkinson, Paul Loeser, and John E. Kirby to recover on a promissory note, of which the following is a copy:
"New York, October 5, 1907. $1,300.00. Four months after date I promise to pay to the order of Lieut.-Col. John E. Kirby thirteen hundred 00-100 dollars at New Amsterdam National Bank. Value received. No. 24. Due Feb. 5, '07. Board of Officers, 8th Battalion, N. G., N. Y., by Geo. L. Wentworth, Treasurer.”
It appears that the note was before maturity and for value indorsed and delivered by Lieut.-Col. John E. Kirby, the payee thereof, to Thos. Reilly Company. The latter company subsequently assigned the same to plaintiff. The case proceeded to trial and was determined in a direction to the jury to find for the plaintiff in the sum of $1,300, together with $74.75 interest, making a total of $1,374.75. The defendants then moved to set aside the verdict and for a dismissal of the complaint, both of which motions were taken under advisement
The defendant contends that the complaint should be dismissed for the reason that the action was against an association known as the “Board of Officers, 8th Battalion, N. G., N. Y.," and not against the individuals composing said board of officers, and upon the further ground that the action, as he claims, being against an unincorporated association and brought under section 1919 of the Code of Civil Procedure, in default of the action being brought against the president or treasurer as such of an unincorporated association, it must be brought against all the members, citing Schwartz v. Wechler, 2 Misc. Rep. 67, 20 N. Y. Supp. 861. There would be substance in defendant's contention if this action was brought against an unincorporated association, but the fact is the action is against certain individuals who are designated as being the members of the Board of Officers, Sth Battalion, N. G., N. Y. The plaintiff had a right to institute his action for the collection of this promissory note against the members constituting said board, because that method was given to him by the common law. It was optional with him to commence his action against
the president or treasurer of the said Board of Officers, 8th Battalion (Section 1923, Code Civ. Proc.) or against the individual members composing said association. He chose the latter. As I understand this case, it resolves itself to this: That the individuals sued authorized the defendant Wentworth to make the note in question and on their behalf. The mere fact that the note was signed “Board of Officers, 8th Battalion, by Geo. L. Wentworth, Treasurer," does not in any way lessen the liability of those individuals who were sued and found to be members of the said Board of Officers, 8th Battalion, and I believe the debt in question is the debt of the members of the said Board of Officers, 8th Battalion.
The defendant contends, further, that the present action is not maintainable because all the members of the Board of Officers were not made parties defendant; but the record shows that at the time of making the note in suit the following members of the Board of Officers were present: McKensie, Loeser, Cipollari, Tannenbaum, and Sauvan -and the defendants Austin, Wentworth, Acker, Badenhauser, Baxter, and Stevenson, were not members of the said board, and by consent the action was dismissed as to them. The defendants simply interposed a general denial. I believe that the nonjoinder of the parties defendant was not sufficiently raised by the plea interposed. Had it been properly raised, there would be no question that the defect would be a bar to this action. Section 488, .subd. 6, and section 498, Code Civ. Proc.
Where there is a defect of parties plaintiff or defendant, and the defendant does not demur or answer on this ground, he cannot for the first time raise the question on the trial; and, not taking it as provided in the Code, it is deemed waived. Farwell v. Importers & Traders' Nat. Bank, 90 N. Y. 483; Isear v. Hoadley, 44 App. Div. 161, 60 N. Y. Supp. 609. The case of Schwartz v. Wechler is an authority, as I read it, against defendant on the question of nonjoinder, and there it was explicitly held that it was not necessary for plaintiff, as a condition to the maintenance of this action, to first bring suit against the president or treasurer of the Board of Officers. Humbert v. Abeel, 7 Civ. Proc. R. 417–421; Hudson v. Spalding, 53 Hun, 638, 6 N. Y. Supp. 877. Of course, the individuals who were sued in this action and who were found to be members of the Board of Officers will be compelled to bear the burden of this debt; but, if this question of nonjoinder was properly raised, the persons not joined, and who escape by reason thereof, would be compelled to share the burden of the debt, which now falls upon the shoulders of those sued. It seems to me that the plaintiff, who succeeded to the rights of the Thomas J. Kirby Company, a bona fide holder in due course, for value, and without notice, of the note in suit, is entitled to have the verdict stand against all de fendants sued and who were members of the Board of Officers, which include Abraham L. Mckensie, Paul Loeser, Edward H. Wilkinson, Julius T. Tannenbaum, Frank O. Sauvan, and John E. Kirby.
Motion to set aside verdict denied. Defendant may have an exception, 10 days' stay, and 30 days to make a case.
(63 Misc. Rep. 117.)
BRUCK V. LAMBECK et al.
(City Court of New York, Special Term. March, 1909.) 1. Costs (8 3*)-RIGHT THERETO-DEPENDENT ON STATUTE.
The right of a party to costs depends on the statute.
[Ed. Note.—For other cases, see Costs, Cent. Dig. $8 1, 4, 5; Dec. Dig.
$ 3.*] 2. Costs (8 90*)-JOINT DEFENDANTS.
Code Civ. Proc. § 3229, provides that defendant is entitled to costs of course on judgment in an action specified in section 3228, unless plaintiff is entitled; but where, in such action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all none of the defendants are entitled to costs of course. Held, that where, in an action on a note against the maker and indorsers, the maker de faulted, so that plaintiff was entitled to costs against him under section 3228, and verdict was recovered by the indorsers, under section 3229, costs in favor of the latter were in the discretion of the court, whether or not plaintiff suspended entry of judgment against the maker till ter. mination of the trial against the indorsers.
[Ed. Note.-For other cases, see Costs, Cent. Dig. 88 350-355; Dec. Dig. $ 90.*] Action by Rubin Bruck against Kalman Lambeck and others. A bill of costs in the action was taxed by the attorney for defendants Rubin and Samuel L. Bruck, who succeeded in the action, and plaintiffs appeal. Defendants in question held not entitled to costs, and the clerk directed to retax costs accordingly.
Morrison & Schiff, for plaintiff.
FINELITE, J. The plaintiff brought an action against Kalman Lambeck, Rubin Bruck, and Samuel Bruck on a promissory note made by said Kalman Lambeck and indorsed by the other two defendants. The summons and complaint was served upon all of the defendants. The defendant Lambeck defaulted in pleading. The defendants Bruck appeared and answered, and the action was in due course reached for trial. After the trial before the court and jury, a verdict was rendered in favor of the defendants Bruck. The attorney for said defendants taxed a bill of costs in the action as the successful party, and the plaintiff appeals from said taxation.
The plaintiff was entitled to a judgment against the defendant Lambeck on his default in failing to defend herein. Therefore the plaintiff contends that under section 3229 of the Code of Civil Procedure, he being entitled to costs against defendant Lambeck, the defendants Bruck, although successful on the trial, are thereby not entitled to costs in the action. Section 3229 reads as follows:
""The defendant is entitled to costs of course upon the rendering of final judgment in an action specified in the last section, unless the plaintiff is entitled to costs as therein prescribed; but where in such an action against two or more defendants the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs of course. In that case costs may be awarded in the discretion of the court to any de fendant against whom the plaintiff is not entitled to costs where he did not
unite in an answer and was not united in interest with a defendant against whom the plaintiff is entitled to costs."
The question which now arises is whether the defendants as a matter of course are entitled to costs. The right of a party to costs is dependent upon the statute. The plaintiff was entitled to recover costs against the defendant Lambeck, the maker of the note. Code Civ. Proc. § 3228. By the next section, above quoted, it is provided that the defendant is entitled to costs of course upon the rendition of judgment in an action specified in the preceding section (section 3228, Code Civ. Proc.) unless the plaintiff is entitled to costs. But "where in such an action against two or more defendants the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs of course." Id. § 3229. The latter section takes the place of sections 305 and 306 of the Code of Procedure, which since 1880 has been superseded by the Code of Civil Procedure. No substantial change has been made by it in the construction and effect of those two sections as they existed after 1851. Prior to that time the right of a plaintiff to costs on recovery against some only of the defendants in an action at law did not deny the successful defendant in the same action the right as of course to recover them. Daniels v. Lynn, 9 N. Y. 549. In that year section 306 of the Code of Procedure was so amended as not to entitle him of course in such case to recover costs. Allis v. Wheeler, 56 N. Y. 50; Royce y. Jones, 23 Hun, 453. The provisions of those sections, 305 and 306, are embraced in section 3229 of the present Code, and the latter section is entitled to a like construction, as its terms quite clearly import. Yamatto Trading Co. v. Hoexter, 44 Hun, 491.
It would seem reasonable to give one of two or more defendants who alone and successfully defends the same advantages as to costs that he who as a single defendant has in an action at law. But in all actions where the plaintiff is entitled of course to recover costs the statute referred to has made the right of the successful defendant in the same action to costs dependent upon the discretion of the court. It makes no difference whether the plaintiff suspended the entry of the judgment against the defendant who defaulted immediately on his failure to answer or plead. He may enter the judgment against the defaulting defendant at such time as he may find it convenient, and may suspend the entry of such judgment until the termination of the trial against the other defendants. The defendant so defaulting, the plaintiff is entitled as a matter of right under the practice to costs before trial. Therefore, if two or more defendants are brought into court, he who alone defends can be treated as the only defendant in the action. Both or all of them are made adverse parties by the process and its service upon them. The relation thus created does not cease to exist as to those who default, or continue alone as to those who defend. The right to judgment then arises as against the former, and as respects the latter the result of the issue is postponed.
The defendants, for the reasons hereinbefore stated, are not entitled to costs, and the clerk is directed to retax the costs accordingly. Settle order on one day's notice.