
    GIBSON against VAN DERZEE.
    
      Supreme Court, First District;
    
    
      Special Term, February, 1873.
    In a proceeding under section 375 of the Code, to require a joint debtor not originally served with process to show cause why he should not be bound by the judgment, the statute of limitations cannot be interposed by reason of any time that has run since the entry of the original judgment.
    The case of Berlin v. Hall, 48 Barb., 443, explained and limited.
    Demurrer to answer.
    Noah L. Wilson, David Gibson, and William F. Roelofson recovered judgment on February 13,1866, in this court, in an action brought by them against William A. Hilyer, and William L. Yan Derzee, as persons jointly indebted upon contract. The' process was served upon Hilyer only, and judgment was entered against both, under the statute (Code of Pro., § 136, subd. 1).
    In April, 1873, the plaintiffs summoned Yan Derzee, to show cause why he should not be bound by the judgment, in the same manner as if he had been originally summoned in the action.
    Yan Derzee appeared,, and answered, stating that ■the original action was brought against himself and Hilyer to charge them as indorsers of a promissory note made in 1865 ; and that more than six years had elapsed since the note became due, since the com- . mencement of the action, and since the entry of the judgment. That during the whole of the period Yan Derzee had been an actual resident of the State, and doing business in the city of New York.
    
      The plaintiffs demurred to the answer for insufficiency.
    
      J. W. Gerard, for the plaintiffs, in support of the demurrer.
    Where a summons has been served on only one of two defendants jointly liable, the judgment must be entered against both defendants (Stannard v. Mattice, 7 How. Pr., 4). And such a judgment may be enforced by a creditor’s bill against the joint property (Billhofer v. Heubach, 15 Abb. Pr., 143). By section 375 of the Code, when a judgment shall be • recovered against one or more of several defendants jointly indebted on contract, by proceeding as provided in section 136, those who were not originally summoned may be summoned to show cause why they should not be bound by the judgment in the same manner as if originally summoned. On the service of summons the present answer was put in. By the Code, an action is commenced as to each defendant when the summons is served upon him, or on a co-defendant who is a joint contractor or otherwise united in interest with him (Code of Pro., § 99).
    I. The above provisions of statute and decisions, show that the service of one of several joint defendants in an action against them jointly, is not a mere formal proceeding, but that it is an actual commencement of an action against all, on which a judgment and execution may be based against them all on their joint property.
    II. Sections 89, 91 of the Code say, that an action of this nature must be commenced within six years. The answer sets up the original action against Van Derzee as one of two joint indorsers of a note, his joint indorser having been served and the action begun within six years after the indebtedness arose,—i. e., the judgment being obtained on February 13, 1866,—the note being due on November, 1865. The provision of law has been complied with to avoid the statute by commencing the action within the proper time, and this present proceeding is not the commencement of an action, but merely a proceeding to enforce the judgment against a certain class of property of the defendant.
    III. It has been held that a judgment so recovered against several defendants as joint debtors, where a part only are served, would be a bar to any future action against any or all of said defendants (Benson v. Paine, 9 Abb. Pr., 28, and 17 How. Pr., 407; Same v. Same, 2 Hilt., 552). These decisions show that the real action is the first suit against the joint debtors, and that that is not a mere formal proceeding, but a substantial one involving merits, and capable of being pleaded in bar like any other action. It is also held that this summons is not a new action (Fairchild v. Durand, 8 Abb. Pr., 305).
    
    TV. The answer contains no legal defense, and there must be judgment for the plaintiffs against the defendant on the demurrer.
    V. To this proceeding the statute of limitations cannot be interposed as a defense. The only defense which may be interposed is such as existed at the time of the commencement of the original action (Code of Pro., § 379). The Code also states that the party can deny the judgment, or set up any defense thereto which may have arisen subsequent to the judgment. This applies to a defense to th % judgment only ; as payment, fraud, &c., and not such a defense as this to the 'original cause of action. Section 379, as it now stands, was enacted in its present form in 1866, after the case of Berlin v. Hall, 48 Barb., 442.
    
      William L. Van Derzee, opposed.
   Van Brunt, J.

This proceeding is instituted under section 375 of the Code, the defendant being summoned to show cause why he should not be bound by a judgment entered February 13, 1866, against his joint debtor, one Hillyer. The defendant answers that the statute of limitations has run against the original cause of action, and to this answer the plaintiff demurs.

Section 279 of the Code says that “ upon such summons, any party summoned may answer within the time specified therein, denying the judgment or setting up any defense thereto, which may haw arisen subsequently to said judgment.” It will be seen that the defendant may deny the judgment or set up any defenses thereto,—that is, to the judgment,—which may have arisen subsequent to such judgment. Such defenses would be payment, release, discharge in bankruptcy, and the like; they all being defenses to the judgment.

Now what more can the party do? The section says, “ he may malee any defense which he might haw made to the action, if the summons had been serwd on him at the time the same was originally commenced and such defense had then been interposed to such action.” That is, he has the same rights, which he would have if served with the summons, and can now set up as a defense to the cause of action any defense which he could have set up if served with the summons, and no other. Any other construction would be at variance with the section of the Code in reference to the times for commencing actions. Section 91 prescribes that all actions on contract must be commenced within six years, and section 99 provides, that an action is commenced as to each defendant when the summons is served on him, or on a co-defendant who is a joint contractor, &c. Thus it would appear that if no judgment had been entered, and Yan Derzee had not been served with a summons until now, he could not set up the statute of limitations, because the action had been commenced within the six years by service of his co-defendant, Hillyer, with, a summons; and could it have been the intention of the legislature to put a plaintiff in a worse position, because he has entered his judgment, than if he had not done so %

It seems to me that it was the evident intention to put the parties in precisely the same position that they would have occupied, had the action been commenced as to one, and no judgment entered until the other had been served with process.

I am aware that Judge Leonard, in the decision of the case of Berlin v. Hall, 48 Barb., 442, has made use of language which gives a different construction to this section ; but this question was not before the court, and possibly the learned judge, in giving his opinion, may have overlooked the considerations which seem to demand a different construction.

The demurrer must be sustained.

Defendant to be allowed to amend his answer upon payment of costs in twenty days.  