
    LOUIS STERNBERGER, et al., Respondents v. MEYER A. BERNHEIMER, Impleaded with JOSEPH FALK and GEORGE W. FALK, Appellant.
    
      Judgment, error in entering on general verdict, how corrected,—Joint contract, evidence to establish, pool, evidence of entering into with acts and declarations sufficient—Pool, definition, resort to cases may be had for.
    
    An error in entering judgment against one of two contractors (the other not having been served) upon a general verdict against the one who litigated can be remedied by motion only.
    Joint contract may be shown by testimony of witnesses that the defendants entered into a pool to purchase, and by their act and declaration showing that the purchase was a joint venture, and that they used the word “Pool” as designating a joint venture in which they were to be engaged.
    Pool, definition of, a resort to reported cases might properly be made for its definition.
    Before Sedgwick, Ch.. J., and Ingraham, J.
    
      Decided January 7, 1889.
    Appeal by defendant from judgment entered upon verdict of jury.
    This action was brought to recover commissions alleged to have been earned by Louis Sternberger, a stock broker, for services alleged to have been rendered by him as broker'in the purchase by him for the defendants jointly and at their request certain shares of stock, and for a balance due on the purchase money of such stock advanced by him for the purchase thereof at the request of the defendants. The complaint, among other things, alleged that the defendants were copartners in a joint venture and business dealing in said stock.
    The summons was not served on defendant Joseph Falk and he did not appear or answer. The other two appeared and answered.
    On the trial the jury found a general verdict for plaintiff against the defendant Meyer A. Bernheimer and assessed the plaintiff’s damages, and also found a general verdict , in favor of defendant, George Falk. On this verdict a judgment was entered in favor of the plaintiff against the defendant Meyer A. Bernheimer for the damages assessed by the jury and costs as taxed, and in favor of defendant George Falk against the plaintiff, adjudging that the complaint be dismissed on the merits as against defendant George Falk, and that defendant George Falk recover of plaintiff his costs as taxed.
    Other facts appear in the opinion.
    
      Bettens & Lilienthal, attorneys, and Jesse W. Lilienthal of counsel for appellant, argued:—
    I. The judgment on the verdict has been erroneously entered and should be reversed, and a new trial should be granted. Three defendants, Bernheimer, Joseph Falk and George Falk, are sued upon a joint liability and only two, Bernheimer and George Falk, are served and appear. The jury rendered a verdict against defendant Bernheimer and in favor of . defendant George Falk. The plaintiff’s proof is to the effect that Joseph Falk, the defendant not served, employed the plaintiffs as brokers to purchase stock for a “ pool,” composed of himself, Brunner, Cahn, Bernheimer and George Falk. The appellant, Bernheimer, was entitled to have the judgment entered against defendant, Joseph Falk, the alleged co-contractor, as well as against himself, so that joint property might be applied to satisfy the execution. Niles v. Battershall, 2 Robt. 146, S. C., 18 Abb. Pr. 161; Nelson v. Bostwick, 5 Hill, 37; Produce Bk. v. Morton, 67 N. Y. 199; National Bk. v. Spencer, 19 Hun, 569.
    II. Assuming that the respondents were not bound to enter up judgment against the co-contractor of the appellant, sued but not served, they at all events had this right, and therefore the effect of the omission so to do, was to release said co-contractor. And the effect of releasing him would be to deprive the appellant of his right to enforce contribution, and therefore the judgment entered against appellant alone was erroneous in depriving him of this substantial right, and should be reversed. Waggoner v. Walrath, 24 Hun, 443 ; Tobias v. Rogers, 13 N. Y. 59.
    III. The motion for the nonsuit should have been granted. It was made at the close of the plaintiffs’ case, and again before the summing up, on the ground that the complaint states a joint employment in a joint venture undertaken by the three defendants, while there was no evidence to establish a joint venture. The case was allowed to go to the jury, although there was no evidence of a joint adventure, unless the evidence of a “ pool,” without any explanation of its meaning, or how it was understood by any of the parties, be such evidence. It will be conceded that the burden is on the plaintiffs to prove the material allegations of the complaint denied by the answers. Now, then, will the court take judicial notice that a “pool” is a joint venture ? The utmost diligence of counsel has failed to find a single expression of opinion in the books to warrant such an assumption. The only references to the word “ pool ” that have been found are contained in: Kilbourne v. Thompson, 103 U. S. 168; Harris v. White, 81 N. Y. 532.
    Counsel here entered into an extended analysis of the evidence to show that apart from the expression “pool” there was no evidence of a joint adventure.
    
      D. Solis Hitterband, attorney, and James M. Smith of counsel for respondents.
   By the Court.—Sedgwick, Ch. J.

The action was upon a joint liability on contract. One defendant was not served and did not appear. The trial proceeded against the other two defendants. The verdict was against one of these and in favor of the other. Judgment was entered against the former individually, who is the appellant here. On the appeal he claims that the judgment should have been entered against him and the defendant not served, jointly. The duty of entering judgment upon a general verdict, is upon the clerk. § 1189 Code Civil Procedure. A mistake by him is to be remedied by motion to the court and then, if the motion be denied, by appeal from the order made. The remedy is not, by an appeal from the judgment. Wright v. Nostrand, 94 N. Y. 41, and the cases there cited.

Upon the trial the defendants asked for a dismissal of the complaint, on the ground that the evidence did not show any joint venture or joint liability. The learned counsel for appellant supposes, that the only testimony that would tend to show a joint interest or contract, was the use by witnesses of the word “ pool,” and he urges that the word pool ” is unknown to the law, and was not at all explained on the trial. This does not do justice to the evidence. The jury could know what was intended by the parties, because the testimony showed what was done, in the pool ” under the joint order given by the parties, and the recognition by the appellant that the plaintiffs had acted properly. I think also, that so many decisions have been made concerning pools that resort to the cases might be made properly for a definition of the word. It is unnecessary to refer to them, because the acts and declarations of the parties showed what they meant when the word was used.

The condition of the testimony would not justify a setting aside of the verdict as against the weight of evidence.

The judgment and order appealed from should be affirmed with costs.

Ingraham, J., concurred.  