
    Jacob B. Stein, Respondent, v. The Woodward Publishing Company, and William H. England, Doing Business Under the Name and Style of the Merchants’ Cooperative Association, Appellants.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Proof necessary to sustain action for services against defendants alleged to be jointly liable — Section 456 of the Code of Civil Procedure not available on appeal.
    Plaintiff sued a corporation and its president, who was conducting an individual business, jointly for labor and services rendered to both.
    Held, to recover it was necessary to show that both defendants, expressly or impliedly, recognize their joint liability. Though the president employed plaintiff, the latter cannot recover against the corporation and the president jointly where there is nothing to show whether the services were rendered to the president individually or to the corporation.
    
      Such plaintiff on appeal cannot invoice the provisions of section 456 of the Code of Civil Procedure, governing actions against defendants severally liable, where he has failed to make an election under said section on the suggestion of the court below.
    Appeal by the defendants from a judgment rendered in the Municipal Court of the city of New York, fourth district, borough of Manhattan, in favor of the plaintiff.
    Wentworth, Lowenstein & Stern, for appellants.
    Henry Lewis, for respondent.
   Freedman, P. J.

One of the defendants, the Publishing company herein, is a domestic corporation, of which the defendant W. H. England is the president, and the other is an individual doing business under the style and name of the Merchants’ Co-operative Association.

Plaintiff sued both for work, labor and services and moneys expended, and sought to and did recover a judgment against both. The testimony shows that during the time the plaintiff rendered the services he was employed by .England and did work, sometimes for the corporation and sometimes for England, both the corporation and England having offices in the same building. The plaintiff’s claim that there was a joint liability existing in favor of the plaintiff and against the defendants is expressed by plaintiff’s counsel in his brief in his assertion that “ the proof shows employment by both defendants under a general employment to Mo any work that they wanted him (plaintiff) to perform,” but this proof consists in the mei\e fact that England is the president of the corporation and is also doing business as an individual. This is not enough. The plaintiff should have given some testimony tending to show that both defendants expressly or impliedly recognized their joint liability. True England employed the plaintiff to do the work, but there is tiothing to show that when plaintiff performed work for the corporation upon England’s request, that England as an individual assumed any liability therefor or received any benefit therefrom, and the same is true of the corporation when plaintiff performed labor and services for England as an individual. No inference of a joint liability of the defendants can be drawn from the fact that for some time previous to the time the services sued for herein were rendered, the plaintiff was paid for similar services in checks signed by “Woodward Publishing Co., W. H. England, President,” for the reason that it does not appear that the services for which those checks were given were rendered to both defendants. The plaintiff urges that this court can invoke the power conferred by section 456 of the Code of Civil Procedure, which provides that where a summons is issued against two or„more defendants alleged to be severally liable and is not served upon all, the plaintiff may proceed against those served, etc., and if served upon all he may take judgment against one or more of them where he would be entitled to judgment if the action was against him or them alone, and says “ one or both of the defendants is wholly and severally liable, to plaintiff for the full amount and this court as well as the court below could have rendered judgment against one or both of the defendants for the full amount.” No such request was made of the court below although it was plainly stated to plaintiff that such was his proper course.

The case was tried upon the theory that the defendants were jointly liable and the evidence as to what services were rendered to each defendant is so indefinite and uncertain in its character as to furnish no reliable guide by which to charge either defendant therewith, even if this court had a desire to thus aid the plaintiff. With the exception of naming the defendant to be exclusively proceeded against, the trial judge was clearly correct when he said at the close of the trial, “ you either have to discontinue and take a judgment of dismissal or elect to proceed against the defendant England alone.” This statement by the court should have been heeded by the plaintiff. The subsequent rendition of judgment in favor of the plaintiff against both defendants cannot be sustained.

Bischoff and Gildersleeve, JJ., concur.

Judgment reversed. New trial ordered, with costs to appellant to abide event.  