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a mistrial because of the sickness and nonappearance of a juror. Thereafter the defendant Morgan procured an extract from the minutes reading as follows:

“I hereby certify that this cause was tried on the 3rd and 4th days of February, 1909, by the court and a jury, and the complaint dismissed as to the defendant George W. Morgan. Mistrial directed by the court as to the de fendants Mathew P. Breen and Augustus S. Dominick. (Signed by the clerk.)"

Upon this a judgment was entered dismissing the complaint as to the defendant Morgan, with $168 costs. Subsequently a motion was made to vacate that judgment upon the ground that the judgment had been entered without warrant of law and was of no validity, for the reason that, on account of the mistrial declared, the trial of the action must proceed de novo, and that the rights of all the parties to the action remained the same as if no trial had taken place. This motion having been denied, plaintiff appeals.

The plaintiff in his complaint attempts to hold the defendants to a joint and several liability for a tort. The trial had proceeded so far that the plaintiff had rested his case, and thereupon the defendant Morgan moved for a dismissal thereof so far as he was concerned, and the court as matter of law granted the motion and dismissed the complaint, upon the ground that the plaintiff had not established a cause of action against the defendant Morgan. From that moment Morgan was out of the case, at liberty to leave the courtroom, and no further proceedings could be had therein to his prejudice.

Section 1204 of the Code of Civil Procedure provides that: "Judgment may be given for or against one or more plaintiffs and for or against one or more defendants *

and it may grant to a defendant any affirmative relief to which he is entitled."

Section 1205 provides that: "Where the action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, render judgment against one or more of the defenfdants, and direct that the action be severed and proceed against the others as the only defendants therein."

It would seem as if these sections of the Code were precise authority for the action taken.

Actions for tort are joint and several. The plaintiff may sue all in one action or bring a several action against each. All the defendants may join in an answer or each may answer separately. The court may dismiss the complaint as to one or more, direct a verdict as to others, and submit the facts to the jury as to the others. The jury may find for the plaintiff as to one or more, for the defendant as to others, and disagree as to the remainder. When two alleged tort-feasors are joined in one action and answer separately, the plaintiff may prosecute the case against one to judgment first, and afterwards prosecute the case to judgment against the other, and the first judgment is not a bar to the second. In Lansing v. Montgomery, 2 Johns. 382, action was brought for trespass against Lansing and one Goeway, who was a constable and had levied upon a warrant to distrain for rent given to him by Lansing, the landlord. In the action for trespass, Goeway pleaded that the plaintiff had before sued him for the same trespass

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and that he then pleaded his power from Lansing to distrain, and that the jury found in his favor. To this plea the plaintiff demurred. The demurrer was overruled, and Goeway entered judgment. Lansing pleaded, first, not guilty; and, second, the former judgment against Goeway. The jury found a verdict against Lansing. Held, “that the judgment in favor of Goeway was no bar to the suit against Lansing for torts are joint and several, and the defendants pleaded severally.'

In Dominick v. Ecker, 3 Barb. 17, the court said:

"The parties having several in their pleadings, Powell was entitled to a discharge, even if the other party were not. In McMartin v. Taylor, 2 Barb. 356, we decided that one of several defendants sued for a tort is entitled to a verdict before the case of his codefendants is submitted to the jury, if the testimony be such that, if he were sued alone, he would be entitled to a nonsuit. We also held that this was not a matter of discretion, but of right."

In People v. Cook, 8 N. Y. 67, 59 Am. Dec. 451, the court said:

“On the failure of proof on the part of the plaintiff, it is we i settled in this state, and has been for half a century, that the plaintiff may be compelled to be nonsuited against his consent.

The true rule is 'lat a defend. ant sued in tort with others is entitled to be discharged if the evidence against him be such that if he was sued alone he would be entitled to a nonsuit. MCMartin v. Taylor, 2 Barb. 356. The power to nonsuit results from the principle that the court is the judge of the law when there is no dispute about the facts."

In Broome v. Taylor, 76 N. Y. 564, the court said:

"The hond set out in the complaint is joint and several, and hence this is a case where a separate action could have been commenced against each obligor, and in an action against both judgment could be given for one and against the other. Old Code, § 274; Brumskill v. James, 11 N. Y. 294; Harrington v. Higham, 15 Barb. 525; Parker v. Jackson, 16 Barb. 33."

In Stedeker v. Bernard, 102 N. Y. 327, 6 N. E. 791, the court said:

"By the former Code (section 274) the court was authorized, in an action against several defendants, to render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment was proper. The court in construing this provision did not limit its appllcation to cases of joint and several liability, but considered it as authorizing a separate judgment where a separate liability of some of the defendants was established on the trial, although the cause of action, as alleged in the complaint, was joint only. Section 1203 of the present Code is quite as comprehensive as section 274 of the former Code, and requires the same construction. The plaintiff, however, was not, we think, bound to await the trial of the issue before applying for judgment against the defendant Bernard."

We see no difficulty in applying this principle of entering a separate judgment in an action upon a joint and several liability, where separate answers have been interposed, in favor of a defendant, as has been applied for many years in the case of a plaintiff. The ground for the rule is that, the cause of action being several, the separate answers to the complaint may be treated as creating a separate action, and, if the plaintiff would be entitled to a judgment if he had brought a separate action, he is entitled to a separate judgment when the facts and circumstances warrant it. So in the case at bar the plaintiff brought a several action against the defendant, who separately answered. Thereby a distinct issue was raised. If it was to be considered a separate

be considered as a separate action so far as the defendant is concerned, and, the court having decided as matter of law that the plaintiff has established no cause of action against the defendant and dismissed his complaint, it follows that the issue raised is settled in behalf of the defendant. No further case can be made against him. What is he to do? Is he to await indefinitely the course of litigation entirely controlled by others, to be relieved definitely of a claim made against him? By the order of the court in open court, and of which a record was placed upon the clerk's minutes, the cause of action against him was severed from the cause of action remaining against the other two defendants, and, being so severed, was disposed of, and, it being thus of record, the clerk was warranted in entering the judgment called for by the order of the court so evidenced. The action having been severed, the defendant was entitled to costs as in a separate action as of course.

By inadvertence the judgment stated that the dismissal was upon the merits. These words should be stricken from the judgment, but, as the motion was to vacate and not to correct the judgment, that matter may be disposed of by consent or by a separate motion.

The order appealed from should be affirmed, with $10 costs and disbursements. All concur.

FREEDMAN V. SAFRAN.

(Supreme Court, Appellate Division, First Department. April 8, 1909.) 1. LIS PENDENS ($ 22*)-STATUTORY PROVISIONS.

The rule at common law and in equity that an alienee of real estate, pending a real action, takes subject to the judgment when rendered, is changed by statute now embodied in Code Civ. Proc. 88 1670–1672, authorizing plaintiff in an action affecting the title to real property to file a notice of lls pendens, etc., and such notice glves constructive notice of the pendency of the action to a purchaser or incumbrancer becoming such subsequent to its filing.

(Ed. Note.—For other cases, see Lis Pendens, Dec. Dig. $ 22.*] 2. LIS PENDENS (8 16*)-STATUTORY PROVISIONS.

The notice of lis pendens authorized by Code Civ. Proc. 88 1670–1672, authorizing plaintiff in an action affecting title to real property to file a notice of lis pendens, which notice shall be constructive notice to a purchaser or incumbrancer, etc., must contain the names of the parties, a statement of the object of the action, and a description indicating with sufficient certainty the property respecting which the action is brought.

[Ed. Note.-For other cases, see Lis Pendens, Dec. Dig. 8 16.*] 3. LIS PENDENS (8 16*)—NOTICE-SUFFICIENCY.

A notice of the pendency of an action to foreclose a real estate mortgage correctly stating the title of the action, giving the names of all defendants, including a second mortgagee, reciting that the action was commenced to foreclose the mortgage made to plaintiff by defendant mortgagor, correctly describing the mortgage with place and date of record, averring that the mortgaged premises were described in the mortgage, and correctly describing the premises, except that the point of beginning was stated to be on the southerly side of a designated street, whereas the property was actually situated on the northerly side thereof, was sufficient within Code Civ. Proc. $i 1670–1672, authorizing notice of lis pend

•For other cases see same topic & & NUMBER In Dec. & Am. Diga. 1907 to dato, & Rop'r Indexes

116 N.Y.S.-8

ens, and was sufficient to give notice of the pendency of the action to subsequent assignees of the second mortgage, and to a subsequent mortgagee.

(Ed. Note.—For other cases, see Lis Pendens, Dec. Dig. $ 16.*) 4. LIS PENDENS ($ 13*)—NOTICE-SUFFICIENCY.

The rights of creditors obtaining a judgment after the commencement of an action to foreclose a real estate mortgage executed by the debtor are not affected by the insufficiency of the notice of lis pendens filed in the foreclosure action.

[Ed. Note.-For other cases, see Lis Pendens, Dec. Dig. 13.*] Submission of controversy on an agreed statement of facts by Asher Freedman and Moritz Safran. Judgment for plaintiff.

Argued before PATTERSON, P. J., and ÎNGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.

David B. Ogden, for plaintiff.
Harold Swain, for defendant.

SCOTT, J. This is a submission of a controversy upon an agreed state of facts.

The plaintiff has contracted to convey to the defendant certain property on the northerly side of Grand street, west of Wooster, subject to certain specified incumbrances; and the defendant has agreed to purchase it and to pay therefor the stipulated price. The defendant has · refused to perform the contract on the ground that the plaintiff did not have a good marketable title to the premises for the reason that the title and the interest of the plaintiff therein was incumbered by certain mortgages and judgments not excepted in the contract. The necessary tenders were made on both sides, and the question submitted to the court is whether the plaintiff's title was good and marketable, so that the defendant was obliged to complete his contract and pay the purchase money, or whether it was not good and marketable, so that the defendant was entitled to recover back the $500, which he had deposited on the signing of the contract, and the cost of the examination. The question arises out of the following facts:

On the 1st of June, 1904, the Demarest Pattern Company owned the. premises in question and mortgaged them to the Metropolitan Life Insurance Company to secure the sum of $50,000. This mortgage was a first lien upon the property. On the 29th day of July, 1904, the Demarest Pattern Company executed a second mortgage covering the same premises to one Lee H. Smith to secure the sum of $5,000. Smith on the same day assigned the said mortgage to one Hyman Horwitz. On the 27th of October, 1904, the Metropolitan Life Insurance Company commenced an action for the foreclosure of its mortgage. The original summons and complaint and a notice of the pendency of action were filed on that day in the office of the clerk of the county of New York. Hyman Horwitz, who was then the owner of the second mortgage on the property, was made a party to the suit, as was the Demarest Pattern Company, which was still the owner of the fee. They both were duly served in the action with a summons and complaint. The notice of pendency of action correctly states the title of the action, giving the names of all the defendants. It also gives notice

that the action was commenced for the purpose of foreclosing the mortgage made to the plaintiff by the Demarest Pattern Company. It correctly described the mortgage and its place and date of record, and stated that it was indexed in section 2, block 475, on the land map of the city of New York, which was the proper section and block number. It stated that the mortgaged premises were described in the mortgage, to the record of which a correct reference was made; but it also contained a description of the property which was correct in all respects, except that the point of beginning in the description was stated to be on the southerly side of Grand street; whereas, the property was actually situated on the northerly side of Grand street. And it is this defect which is relied upon by the defendant as justifying his refusal to take the title tendered to him by the plaintiff.

The proper description is the description contained in the mortgage, which was as follows:

"All that certain lot, piece or parcel of land, with the buildings and improve ments thereon, situate, lying and being in the borough of Manhattan, city, county and state of New York, bounded and described as follows: Beginning at a point on the northerly side of Grand street, distant seventy-five feet westerly from the corner formed by the intersection of the northerly side of Grand street with the westerly side of Wooster street; running thence northerly and parallel with Wooster street, one hundred feet; thence westerly and parallel with Grand street twenty-five feet; thence southerly and parallel with Wooster street and part of the distance through a party wall one hundred feet to Grand street; and thence easterly along Grand street twenty-five feet to the point or place of beginning."

The description contained in the notice of pendency of action corresponded with this in every particular, except that the point of beginning is stated as being on the southerly side of Grand street, instead of the northerly side. The notice was indexed against all the defendants in section 2, block 475, of the land map of the county of New York, which it is conceded was the proper section number and block number on the said land map of the lot described in the mortgage under foreclosure, to wit, the block bounded on the south by Grand street, on the east by Wooster street, on the west by West Broadway, and on the north by Broome street.

After the filing of this notice of pendency of action, and after the service of the summons upon Horwitz, who at the time of the commencement of the action was the assignee of the second mortgage for $5,000, which is one of the mortgages said to be now outstanding, Horwitz assigned the said mortgage to one Brill by assignment dated December 24, 1904, and on the 5th day of January, 1905, Brill assigned a half interest in the said mortgage to one Annie Levy. Neither Brill nor Levy were made parties to the suit. On the 1st day of Jạnuary, 1905, and after the service of the summons upon them, the Demarest Pattern Company made a mortgage to the Colonial Trust Company, as trustee, to secure an issue of $60,000 of bonds, which mortgage was duly recorded. The defendant also claims that this mortgage was not cut off by the foreclosure suit in consequence of the defect already mentioned in the notice of pendency of action. The other defects complained of were certain judgments recovered against the Demarest Pattern Company after the filing of the lis pendens.

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