
    BANK OF COOPERSTOWN against CORLIES.
    
      Supreme Court, Sixth District ;
    
    
      General Term, July, 1866.
    Judgment against Executors.—Pleading.—Frivolous Answer.—Joint Appeal.
    Where executors or administrators are sued on a debt of their decedent, judgment for the plaintiff should he in terms that the plaintiff recover against them the sum mentioned in it, to he levied of the goods and chattels, &c. in their hands, as executors, &c.
    When a joint answer of several defendants denies an allegation in the complaint, which the plaintiff must prove to establish his cause of action against some of the defendants, hut which he need not prove to entitle him to recover against the others, the answer raises a mal erial issue for the defendants as to whom the plaintiff must prove such allegation.
    
      Such answer, therefore, cannot be held frivolous.
    Thus, where the plaintiffs, suing on a partnership debt, join the executors of a deceased partner and the surviving partners as defendants, and allege the insolvency of the latter, a joint answer denying the insolvency is not frivolous as to all the defendants.
    It is not necessary, in order to make such answer available to the executors, that it should take an objection to the misjoinder of defendants.
    
      It seems, that all the defendants may join in an appeal from a judgment against them on their joint answer, as being frivolous, if it be sufficient as respects some of them.
    Appeal from an order striking out an answer as frivolous, and from the judgment for plaintiffs entered thereon.
    This action was brought by the Bank of Cooperstown against Joseph W. Corlies, Jr., Jonas G. Dudley, and Frederick Jacobson, survivors of the firm of Joseph W. Corlies & Co., and Lydia L., Joseph W., Alfred W. and Edward L. Corlies, executors, &c., of Joseph W. Corlies, deceased. Tire allegations of the complaint were as follows:
    The above-named plaintiff, a corporation duly incorporated • or organized under article 5, of chapter 18, part 1, title 2, of the Revised Statutes of the State of New York, entitled, “ Of Banking Associations and Private Bankers,” located and doing business in the county of Otsego, alleges and shows to this court, that, for several years previous and down to the month of October, 1860, the defendants, Joseph W. Corlies, Jr., Jonas G. Dudley, Frederick Jacobson, and one Joseph W. Corlies, were co-partners, doing business in the city of New York, under the firm-name and style of Joseph W. Corlies and Co.
    That, as such co-partners, they became indebted to one William M. Clinton, of Hartwick, in the county of Otsego, in the sum of four thousand and eleven dollars and fifty cents, or upwards, for goods, wares and mercandise sold and delivered to said co-partners, or advanced to such co-partners, to be sold on commission, and which were sold by them, and the proceeds of such sales never paid over to the said Clinton.
    That by the original articles or contract of co-partnership, the executors of the said Joseph W. Corlies, in case of his death, were to have and did have the right to continue the co-partnership on the part of the said Joseph W. Corlies, and to take his place and be substituted for him in the said co-partnership business, and the said co-partnership business to continue, the same as before the death of the said Joseph W. Corlies.
    That in the month of October, 1860, the said Joseph W. Cor-lies died, and his executors elected to go on with the co-partnership business under the same firm-name and style, according to the terms of the said articles or contract of co-partnership, and * assumed the indebtedness of the original co-partnership to the said William M. Clinton.
    That, in the month of April, 1861, the said co-partnership was duly dissolved, and the said firm, or the members thereof, proceeded to wind up the partnership business, and settle up the debts and liabilities of the said firm.
    That, on the 18th day of January, 1862, the said William M. Clinton made his certain draft or bill of exchange in writing, dated on that day, and directed to Joseph W. Corlies & Co., and thereby required them to pay to the order of the said William M. Clinton, the drawer, three months after the date thereof, the sum of four thousand and eleven dollars and fifty-five cents, and the said draft was afterwards, for value received, duly accepted by the said members of the dissolved co-partnership, or by the defendant, Joseph W. Corlies, Jr., who was the member of the firm deputized and empowered by the firm to settle up the business and pay off the firm debts, and all the liabilities of the said co-partnership, and who was a member of the said firm, and also one of the executors, &c., of the said Joseph W. Oorlies, deceased, and that the same was duly accepted in the name of the said co-partnership, and in liquidation of the said indebtedness of the said co-partnership to the said William M. Clinton.
    That afterwards, and before the said bill or draft became due, the same was duly endorsed by the said payee, William M. Clinton, and one Russel Leonard, and W. F. Leonard, and for value received, duly transferred to this plaintiff, who is now the lawful owner and holder thereof.
    That the said draft or bill was duly presented at maturity for payment, and payment thereof refused, and that the same was thereupon duly protested; the cost of which protest was the sum of eighty-one cents. This plaintiff further says, that the said draft or bill of exchange has not been paid, or any part thereof, but that the whole amount thereof still remains due and unpaid.
    
      The plaintiff further says, the defendants, Joseph W. Corlies, Jr., Jonas Gr. Dudley and Frederick Jacobson, survivors as aforesaid, are, and each and every one of them is, wholly and entirely irresponsible and insolvent, and has no property which can be reached by judgment and. execution, either legal or equitable, and that the said firm has no assets out of which the said debt to this plaintiff can be satisfied, in whole or in part; but that the estate of the said Joseph W. Corlies is solvent, and has more than sufficient assets out of wliich to satisfy the claim of this plaintiff; and that the said defendants, Lydia L. Corlies, Joseph W. Corlies, Jr., Alfred W. Corlies, and Edward L. Corlies, are the executors of the last will and testament of the said Joseph W. Corlies, deceased, duly appointed, and to whom letters testamentary have been duly issued, and who have been, and still are, acting as such executors, as this plaintiff is informed and believes.
    Wherefore, the plaintiff demands judgment against the defendants in this action for the sum of four thousand and eleven dollars and fifty-five cents, together with eighty-one cents protest fees, and interest on the whole from the 18th day of April, 1862; and the decree of this court that said judgment be a charge upon the estate óf the said Joseph W. Corlies, deceased, and that the said executors be decreed to pay the same to this plaintiff, together with the costs of this action, or for such other or further order as to the court may seem meet and proper in the premises.
    The defendants all joined in one answer, which among other things denied the allegations as to the right to continue the partnership, and the actual continuance of it, and the assumption of the indebtedness, and also the allegation that the surviving partners, defendants., were irresponsible and insolvent. The answer also contains new matter relied on as constituting a defence, which it is not material to state for an understanding of the points decided on the appeal.
    The plaintiff made a motion, at the Tioga special term of this court in March, 1866, for judgment, on the ground that the defendants’ answer to the complaint was frivolous—which motion was granted, and judgment was thereupon rendered in favor of the plaintiff against the defendants jointly, for five thousand one hundred and fifty-three dollars and thirteen cents damages and costs.
    
      The defendants appealed from, the order and judgment to the general term of this court.
    
      Lynes & Bowem, for the plaintiffs.
    
      J. Solis Ritterband, for the defendants,
    Cited, as to what is frivolousness in pleading, Hall v. Smith, 8 How. Hr., 150; Nichols v. Jones, 6 Id., 358; Sixpenny Savings Bank v. Sloan, 2 Abb. Pr., 414; and see 12 How. Pr., 544. And as to the materiality of the denial of insolvency, Voorhies v. Baxter, 18 Barb., 592; and 1 Abb. Pr., 43; Voorhies v. Childs, 17 N. Y., 354; Code of Procedure, § 147 ; Hornfager v. Hornfager, 6 How. Pr., 279; 2 Whitt. Pr., 54, 55.
   By the Court.—Balcom, J.

The complaint shows that the firm of Joseph W. Corlies & Co., were indebted to William M. Clinton for goods, wares, and merchandise, which the latter sold to the former : that Clinton drew on Corlies & Co. for the debt, after the death of Joseph W. Corlies; that the draft was accepted by the defendants, including the executors of the deceased member of the firm; and that Clinton afterwards endorsed the draft and transferred it to the plaintiff: that the survivors of the firm (who are made defendants), are, and each and every of them is, wholly and entirely irresponsible and insolvent, and have no property which can be reached by judgment and execution, either legal or equitable ; and that the firm have no assets out of which the debt to the plaintiff can be satisfied, in whole or in part. There is no allegation in the complaint that the debt, for which the draft was given, has been transferred or assigned to the plaintiff. The executors of the deceased member of the firm are made defendants ; and judgment is demanded in the complaint against the defendants for the amount of the draft with interest, and notary’s fees for protesting the draft; and a decree is also demanded in the complaint that the judgment be a charge upon the estate of Joseph W. Corlies, deceased, and that his executors be required to pay the judgment to the plaintiff with costs.

The defendants answered jointly; and in their answer they denied the allegations in the complaint as to the insolvency of the survivors of the firm of Corlies & Co.

The judgment rendered in the action is erroneous, for the reason that it is against the executors of Joseph W. Corlies deceased personally, and is not that the plaintiff recover against them the sum mentioned in it, to be levied and collected of the goods and chattels, &c., in their hands as executors, &c.; and it is a joint judgment against all" the defendants personally.

The denial, in the answer, of the allegations in the complaint as to the insolvency of the survivors of Corlies & Co., though made by all the defendants jointly, formed a material issue between the plaintiffs and the executors of the deceased member of the firm. It is well settled that the personal representatives of a deceased partner cannot be joined as a party defendant, with the surviving partner, to an action for a partnership debt, where the complaint does not show the plaintiff’s inability to procure satisfaction from the survivors. And when the complaint shows that fact, the plaintiff must prove it to entitle him to recover against such representatives (Voorhies v. Childs’ Executor, 17 N. Y., 354; Tracy v. Suydam, 30 Barb., 110; 18 Id., 592; 16 Id., 289 ; 11 Paige, 80; S. C., 2 Den., 577 ; 8 N. Y. [4 Seld.], 362; 2 Sandf. Ch., 573; 2 Johns. Ch., 508 ; 1 Cai. Cas., 122).

Hie judge at the special term was of the opinion that the denial in the answer, of the allegations in the complaint of the insolvency of the survivors of the firm of Corlies & Co. was meaningless,” for the reason that there was no defence of misjoinder of defendants. But I am of the opinion that no such defence was necessary by the representatives of the deceased member of the firm; for if there be a misjoinder of defendants the plaintiff must still prove that the survivors of the firm are insolvent before any judgment can be rendered against the representatives of the deceased member. When too many persons are made defendants none of them, against whom a cause of action is alleged in the complaint, can demur to it, for a defect of parties defendants (Churchill v. Trapp, 3 Abb. Pr., 306; 17 N. Y., 592).

If the complaint fails to show a cause of action against the executors of Joseph W. Corlies deceased, as acceptors of the draft in question, or for the reason that there is no allegation in it that the demand, for which the draft was given, has been transferred to the plaintiff, the executors may take advantage of such defect upon the trial (Higgins v. Rockwell, 2 Duer, 650).

The denial of insolvency referred to formed no material issue between the plaintiff and the surviving members of the firm of Corlies & Co., for the reason that the former need not prove the latter were insolvent to recover against them, if a recovery can be had in the action against all the defendants. But I am of the opinion that the fact that the survivors of the firm' united with the executors of the deceased member in denying the alleged insolvency of the former, did not render such denial by the latter frivolous. It is, notwithstanding, a denial, by the executors, of a material allegation in the complaint, which the plaintiff must prove, or the, executors will be entitled to a dismissal of the complaint. And no authority, need be cited to show that an answer is not frivolous which traverses a material allegation in the complaint. A frivolous answer is one, which, assuming its contents to be true, presents no defence to the action. An informal answer, if it presents a defence, is not frivolous (5 Abb. Pr., 453; 9 Id., 23). And I am of the opinion that a joint answer of several defendants, that presents a defence to tiie action for one defendant, by a denial of a material allegation in the complaint, should not be adjudged frivolous as to all the defendants. I am aware of the rule that existed prior tó the Code of Procedure,—that if two or more persons joined in a special plea, which was sufficient for one, but not for the others, the plea was bad as to all (see Grah. Pr., 2d ed., 241 and 242). Perhaps this rule is applicable to answers under the Code setting up new matter for a defence. But under the Code, denials, in the answer, of material allegations in the complaint, are a substitute for the plea of the general issue, under the old system of pleading (McKyring v. Bull, 16 N. Y., 297); which plea, though jointly interposed by several defendants, was good in all cases, for either defendant against whom the plaintiff failed to establish a cause of action. And I am of the opinion that when a joint answer of several defendants denies an allegation in the complaint, which the plaintiff must prove to establish his cause of action against some of the defendants, but which he need not prove to entitle him to recover against the others, the answer must be held good at the trial for the defendants as to whom the plaintiff must prove such allegation.

Whether, where such a defect in the answer appears upon the face thereof, the plaintiff can demur to it under section 153 of the Code, need not be determined.

The motion in this case was for judgment, on the ground that the answer was frivolous as to all the defendants; and it was adjudged to be so at the special term, and all the defendants have jointly appealed from the order and judgment of the special term. I think they had the right to join in the appeal (see Grah. Pr., 2d ed., 937; Id., 960 ; 11 Wend., 174); though it is probable the executors of Joseph W. Corlies, deceased, could have appealed alone (see Code of Procedure, § 325; Mattison v. Jones, 9 How. Pr., 152). But the point that the defendants could not join in the appeal has not been taken.

My conclusion is that the order and judgment declaring the answer frivolous should be reversed, with costs; and that the plaintiff’s motion for judgment for the alleged frivolousness of the answer should be denied, with costs.

Ordered accordingly. 
      
       Present Parker, Mason, Balcom and Boardman, JJ.
     