
    SUPREME COURT.
    Reuben Dean agt. William E. Eldridge and Samuel Eldridge.
    Where judgment has been obtained against two defendants upon a joint contract, but process served only on one of them, and judgment taken to be collected of the joint property of both, or of the separate property of the defendant «served, a second action may be brought against both defendants, alleging the recovery of the former judgment, and setting out the joint obligation, and serving process only on the defendant not served in the former action, and a like judgment obtained against the latter" defendant.
    The second action is not an action upon a judgment, within the meaning of section 71 of the Code. Neither is such an action superseded by section 375 of the Code, which provides for summoning a party not brought into court to show cause why he should not be bound by the judgment, &c. This remedy provided by the Code must be considered as merely cumulative.
    
      Sixth District General Term, November, 1864.
    
      
      Before Balcom, Mason, Parker and Campbell, Justices.
    
    An action was heretofore brought against the defendants as joint makers of a promissory note, and process served on Wm. F. Eldridge only, and judgment taken therein to be collected of the joint property of the defendants, or of the separate property of Wm. F. Eldridge only. The present action is brought against both defendants—the complaint alleging the recovery of the former judgment, and that no process was served in this action on said defendant Wm. F. Eldridge, but on Samuel Eldridge only, and demanding judgment of the said defendants for $213.19, to be collected of the joint property of said defendants, and of the separate property of the defendant Samuel Eldridge.
    To this complaint Samuel Eldridge demurred, alleging, “ 1st. That it appears upon the face of said complaint that the court has no jurisdiction of the action. 2d. That it appears upon the face of said complaint that .the same does not state facts sufficient to constitute a cause of action against this defendant.” The court at special term, Mason, J., overruled the demurrer, and gaVe judgment for the plaintiff on the demurrer, .with leave to the defendant to answer in twenty days on payment of costs. From this decision the defendant Samuel Eldridge, appealed to the general term.
    Duele & Foster, for appellant and defendant.
    
    Horatio Ballard, for respondent and plaintiff.
    
   By the court, Parker, J.

I do not think this is an action 'upon a judgment within the meaning of section 71 of the Code, which prohibits the bringing of actions upon judgments. That prohibition .was designed to prevent the reduplication of costs, and the vexation of defendants by suits upon judgments, which resulted in nothing but these increased costs, without increasing the remedies or altering the position of the plaintiff in the original judgment {Wheeler agt. Dalcin, 12 How. 541). But this action, or some equivalent proceeding, is necessary to perfect the judgment and render it operative as a judgment against all the defendants. It is not, therefore, such an action as the statute was intended to prohibit. Besides, if it were Avithin the prohibition of section 71, I do not think that a ground of demurrer. This section prohibits the bringing of an action upon a judgment in a court of record between the same parties, Avithout leave of the court. As a matter of pleading, I do not think it necessary to aver such leave in the complaint. That is no part of the cause of action; this exists independently of the leave to sue, so that if there is any defect in the proceedings from want of such leave, the demurrer does not reach it. So far, therefore, as the demurrer rests on the ground that the action is prohibited by section 71, I have no difficulty in holding that it Avas properly overruled.

It is insisted, however, that no action can be maintained against the party not brought into court, in the action on the joint contract, 'but that such new action is superseded by section 375 of the Code, which provides for summoning such party to show cause why he should not be bound by the judgment in the same manner as though he had been originally summoned. It is true that the Code does provide a neAv mode of proceeding for such cases more fit and congruous than that by action, which it must be confessed is someAvhat anomalous and illogical. Still, I do not think the right to proceed by action is superseded. A cause of action still exists, and wherever this is the case, an action may be brought upon it as Avell since the Code as before, unless prevented by some special prohibition. There is no such prohibition in section 375, and the remedy there provided is merely cumulative.

Where a statute merely gives a new remedy without any negative expressed or implied, the old remedy is not taken away, and the party may have his election between the two (3 Hill, 41). Although the new remedj in this case is the more eligible, parties are not restricted to it, though it is to be regretted, I think, that they are not, but may bring their action as before. Again, it is insisted that the complaint fails to set forth a cause of action; that the action is upon the judgment, and it having been held in Oakley agt. Aspinwall (4 Corns. 514), that no demand arises upon such a judgment against the party not brought into court, it follows that a complaint upon such a judgment cannot be sustained. It is true that it was held in Oakley agt. Aspinwall, as above stated, that in case of a judgment upon a joint obligation against, two, when one only is brought into court, the demand still existing against the party not served does not arise upon the judgment, and yet that case does not overrule the case of Mervin agt. Kumbel (23 W. R. 293), which holds that an action upon the judgment is the proper form of action against the party not served, as well as the party served in such cases, notwithstanding the judgment is not even prima facie evidence of indebtedness against him. Judge Jewett in the case óf Oakley agt. Aspinwall, holds the following language: “ In my opinion, a judgment thus recovered does no more as against the defendant not served with process than to change the form of the remedy which before existed for the recovery of the original demand against him, to a remedy in form upon the judgment. That the legislature had power to do that, there can be no doubt, and as it is a convenient mode, although anomalous, for the recovery of the original demand from those of the joint debtors who were not, as well-as those who were served with process in the first suit, without precluding any defence which would be available to those not served, if the new suit had been brought in the former mode, giving the judgment no force or effect as evidence of the plaintiff’s demand as against the defendant not served, I do not see any objection to allowing the statute to have that effect.”

The question here raised by demurrer to the complaint was raised in Mervin agt. Kumbel, by demurrer to the replication, and the demurrer was overruled. Although this seems an illogical conclusion, yet it is held' to be the legitimate effect of the statute which makes the judgment a judgment against all of the defejidants, yet not evidence of indebtedness against those not served with process under the law of pleading then, as it stood prior to the Code. The facts appearing in this complaint, irrespective of the note therein set forth, would have been held in pleading, sufficient to constitute a cause of action. Under the rule prescribed by the Code, there is less difficulty, I think, in holding it sufficient. It will not be denied that a cause of action still exists against these defendants, and it must be still a joint indebtedness, one which may be enforced against the defendants jointly, by means of a judgment and execution against them jointly. If then the complaint sets forth the, facts constituting such a cause of action, it is under the Code sufficient (Code, § 142).

The complaint does set out the joint note on which the judgment was obtained, as well as the judgment, including the fact that no process was served on the defendant Samuel Eldridge, showing that there was an original joint liability of both defendants, and that the judgment was entered against both, though but one was served, under the provision of the statute authorizing it. Now the judgment is made by the statute conclusive evidence of the liability of the defendant William F. Eldridge, who was served with process, and the statement of the note shows that the defendant Samuel Eldridge, was jointly liable with him. These facts are set üp sufficient to maintain the suit against both,' even under the strict requirements of Judge Bronson, in his opinion in the case of Mervin agt. Kumbel, who did not think an action would lie against both defendants on the judgment. He said : “If the plaintiff could

make any use of the judgment in declaring against Mervin, he should, I think have set out the original cause of action in addition to the judgment.” This special mode of declaring upon a judgment, which Judges Co wen and Nelson.in the case last cited thought anomalous, and not allowable in a court of law, the Code makes admissible in providing that the complaint shall consist of a plain and concise statement of the facts constituting a cause of action. All the facts are here set forth, and I think in this view, also, the complaint must be held sufficient.

The demurrer was, therefore, properly overruled, and the order appealed from should be affirmed witlrcosts.  