
    Henry Martin, Assignee, App’lt, v. Thomas O. Crehan and Sarah M. Crehan, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    Nonsuit—Action against joint debtobs.
    The complaint alleged a joint liability for goods sold. The proof showed only an admission of indebtedness by one defendant, who disputed the amount of the account presented. Held, that a nonsuit was proper.
    
      This action was prosecuted to recover a balance claimed to be due the plaintiff, as assignee, from the defendants, for goods sold and delivered by plaintiff’s assignors to the defendants. The complaint alleged the sale of the goods by the assignors to the defendants, their failure to pay, and that they carried on a business jointly, in which the goods were used. The answer was a general denial. On the trial the plaintiff was nonsuited, and from the judgment rendered upon the nonsuit plaintiff appeals.
    
      B. R. Haywood, for app’lt; Galen R. Hitt, for resp’ts.
   Mayham, J.

—The case does not disclose the precise ground on which the nonsuit was granted, and we have not been favored by the counsel on either side with briefs, and must, therefore, look through the evidence to ascertain the grounds of the nonsuit for which this appeal is brought The complaint alleges a joint liability for goods sold and delivered to defendants jointly.

We have looked through the case in vain to find any evidence upon which such liability can be predicated. There is some evidence given by the plaintiff’s attorney, who was sworn as a witness, of a conversation with the defendants about a bill, but it seems to fall far short of amounting to an admission by them that they were joint debtors. All the direct statements proved were made by the defendant, Thomas, and not one word is proved of a declaration or admission by the defendant, Sarah. Nor does the proof disclose that she ever, jointly with Thomas or individually, purchased or received any of the goods referred to in the complaint. If the case had been sent to the jury and a verdict rendered establishing a joint liability, it would have been set aside as wholly unsupported by the evidence. As the allegation in the complaint charged joint liability of both defendants and made no claim for an individual liability of one of them, the proof must establish a joint liability to entitle the plaintiff to recover against both. At common law a failure of proof of a joint liability where one was alleged would be fatal to the plaintiff’s action, as he would be required to establish a joint and not a several liability. But this rule seems to have -been modified by the Code. Brunskill v. James, 11 N. Y., 301. But if a recovery in an action like this might be had against one defendant and the complaint dismissed as to the other, a proposition which is not necessary to be decided in this case, still the nonsuit was right as to both defendants in this case, for the reason that the evidence failed to establish a' joint liability and an individual liability as well.

If it is true that the proof shows that the defendant Thomas admitted that he owed the assignor, yet he disputed the amount of account as presented, and as the evidence stood the jury would have been left entirely in the dark as to the amount of such indebtedness, and a verdict for any amount upon the evidence as it was left would have, at the most, been a mere guess, without any reliable data on which the "jury could predicate a verdict. As the case stood at its close, we think the nonsuit was correct, and that a new trial must be denied.

Judgment affirmfed, with costs.

Learned, P. J., arid Landon, J., concur.  