
    (45 Misc. Rep. 613)
    STEIN v. WOODWARD PUB. CO. et al.
    (Supreme Court, Appellate Term.
    December 7, 1904.)
    1. Contracts—Joint Diability—Action—Parties.
    Where plaintiff sued defendant individually, and also a corporation of which defendant was president, to recover for services, it was necessary to establish a joint liability to show that both defendants expressly or impliedly recognized their joint liability, and proof merely that defendant was the president of the corporation, and that for some time previous to the time the services sued for were rendered plaintiff was paid for similar services in checks signed by the corporation, per defendant as president, was not sufficient, it not appearing that such former services were rendered to both defendants.
    2. Same—Appeal.
    The case being tried on the theory that the defendants were jointly liable, and evidence as to what services were rendered to each defendant being indefinite, and no request having been made therefor, plaintiff was not entitled to a judgment against both under Code Civ. Proc. § 456; providing 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 a judgment against one or more of them, where he would be entitled to judgment if the action was against him or them alone.
    Appeal from Municipal Court, Borough of Manhattan, Fourth District.
    Action by Jacob B. Stein against the Woodward Publishing Company and William H. England, doing business under the name of the Merchants Co-operative Association. Judgment for plaintiff, and defendants appeal.
    Reversed.
    
      Argued before FREEDMAN, P. J., and BISCHOFF and GILDERSLEEVE, JJ.
    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 do any work that they wanted him [pjaintiff] to perform”; but this proof consists in the mere 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 nothing 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 severalty liable, and is not served upon all, the, plaintiff may proceed against those served, etc., and, if served upon all, he may take a 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 severalty 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 tipon 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.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.  