
    BANNERMAN v. QUACKENBUSH.
    (Affirming 7 Civ. Pro. R. 428.)
    
      N. Y. Common Pleas; General Term,
    
    
      April, 1885.
    Costs ; Offer of Judgment ; Joist Debtors.
    An offer by one of two defendants, sued for a firm debt, to allow judgment to be taken against himself for a specified sum, does not authorize the entry of a joint judgment against both defendants; and, hence, if the plaintiff recovers a joint judgment, though.for a less sum than was offered, his recovery is more favorable than the offer, and he is entitled to costs.
    The provision of Code Civ. Pro. § 788,—that “ if there are two or more defendants, and the action- can be severed, a like offer may be made by one or mo re-defend ants, against whom a separate judgment may be taken,”—has no application to actions against defendants whose liabil'ty is joint, as in the case of copartners sued upon a copartnership debt.
    The summons and complaint named only the defendant who made the offer, the words “& Son ” merely being added without naming the other partner. The latter’s name was inserted by leave of court upon the trial. The answer of the defendant who made the offer disclosed that the goods sued for were purchased by “ defendant’s firm ” and set up a counter-claim upon an indebtedness to “ defendant’s firm.” Held, that he was bound to make an offer of judgment that would embrace all the members of the firm, whether they were named in the summons and complaint or not.
    Appeal from an order of the general term of the city court, affirming an order of the special term upon a motion by the plaintiff for a new taxation of costs.
    William J. Bannerman sued “ John E. Quackenbush- & Son,” as copartners, for goods sold the firm. John E. Quackenbush was the only defendant who was served with the summons. He answered separately, setting up an off set for a debt due the firm, and served with the answer an offer to allow judgment to be taken “against him” for a sum specified, with interest and costs. Upon the trial, upon plaintiff’s motion, the title of the action was amended by striking out the words “& Son,” and inserting the name, Abraham Quackenbush, instead.
    The plaintiff recovered judgment for a less sum than was offered, but recovered judgment against both the defendants as copartners.
    The clerk taxed the costs up to the time of the service of the offer of judgment in plaintiff’s favor, and the costs subsequent to that time in favor of defendant, John E. Quackenbush.
    The plaintiff moved at the special term for a new taxation, and upon such motion an order was made, reversing the taxation of plaintiff’s bill of costs, and directing the clerk to tax the same in plaintiff’s favor, as if no offer of judgment had been served.
    From this order, the defendant, John E. Quackenbush, appealed to the general term of the city court, where the same was affirmed, upon the grounds taken by this court on this appeal. Defendant thereupon appealed to this court.
    
      William J. Leitch (M. L. Hollister, attorney), for the defendant, appellant.
    
      Frank M. Avery (Phillips & Avery, attorneys), for the plaintiff, respondent.
   Daly, J.

—The first sentence of section 738 of the Code of Civil Procedure is identical with section 385 of the former Code, and provides: “The defendant may, before the trial, serve upon the plaintiff’s attorney, a written offer, to allow judgment to be taken against him for a sum or property, or to the effect therein specified, with costs.” Under the former Code, it was held that one joint debtor, or one copartner, might make an offer, that the plaintiff should take judgment against the defendant jointly liable, and if he were authorized to make such an offer by his co-defendants, or if there were a general appearance for all, or if the offer were made to secure a bona fide creditor, judgment might be entered upon the offer against all the defendants in form, and enforced against their joint property and against the individual property of the defendant served (Olwell v. McLaughlin, 10 N. Y. Leg. Obs. 316, Com. Pleas Sp. T., Daly, J., 1852, approved in Bridenbecker v. Mason, 16 How, Pr. 203-207, Supreme. Ct. See also Binney v. Le Gal, 19 Barb. 592; 1 Abb. Pr. 283; Emery v. Emery, 9 How. Pr. 131).

It was also held that where one of two defendants jointly indebted made an offer to plaintiff to take judgment against him, and his co-defendants were in default for want of an answer, and had not appeared, so that the plaintiff on receipt of the offer might at once enter judgment against both defendants, he must accept it or proceed at his peril as to future costs (La Forge v. Chilson, 3 Sandf. 752; Bridenbecker v. Mason, above).

The offer made by defendant John E. Quackenbush, was not within any of the above authorities. His co defendant was not in default and had not been served with process, and the offer was not made on behalf of the joint debtors, but was an offer of judgment against himself alone. It was expressly held in Everson v. Gehrman (1 Abb. Pr. 167), that such an offer authorized the entry of judgment against the defendant making the offer, but did not authorize a judgment against him and his copartner as joint debtors ; and a judgment against both entered upon such an offer was set aside as irregular. If the effect of an offer by one of two joint debtors, to allow judgment against himself, is to authorize an individual and not a joint judgment, so that the plaintiff cannot have execution against the joint property, then it is of course an offer of a less favorable judgment than that which he recovers against both joint debtors in form. This was decided in the cáse of joint and several debtors where two' out of four defendants offered to allow judgment against themselves separately (Griffiths v. De Forest, 16 Abb. Pr. 292).

The Code of Civil Procedure contains a provision not found in the former Code, by which one or more defendants in an action which can be severed, may make the offer of a separate judgment. This provision was inserted to cover such cases as Griffiths v. De Forest (supra), where the action is brought against defendants jointly and severally liable as to whom the action may be severed, and against whom separate judgments may be taken ; but it has no reference to actions against defendants whose liability, is joint, as in the case of copartners sued upon a copartnership debt.

It has been held since the adoption of the Code of Civil Procedure, that there is no authority for one copartner to make an offer of judgment for the firm (Garrison v. Garrison, 67 How. Pr. 271, and that no offer by one copartner is effectual without evidence that the other copartners approved or ratified it (Weed v. Bergstresser, 2 Monthly L. Bul. 55, following Binney v. Le Gal (supra). But whether we hold that an offer of one joint debtor on behalf of all is as effectual under the present Code as under the former, we must hold upon the authorities under the former Code, that the offer made by John E. Quackenbush to allow judgment against himself was not an offer of a joint judgment, and therefore not an offer of as favorable a judgment as plaintiffs finally obtained against him and his copartner.

It is urged that as the summons and complaint did not name Abraham Quackenbush as defendant, John E. was not bound to offer judgment against him ; but. it appeared from the answer of John E. that the goods for which the action was brought were purchased by “defendant’s firm,” and his counter-claim was upon an indebtedness to “defendant’s said firm,” and he knew, therefore, that if plaintiff recovered it would be against the firm, and that a judgment against one partner would not be as favorable as a judgment against all, and he was bound to make an offer that would embrace all the members of the firm, whether they were named in the summons and complaint or not.

The order appealed from should be affirmed, with costs.

Larremore, Ch. J., and Van Hoesen, J., concurred.  