
    Henry Stedeker, respondent, v. Henry O. Bernard, appellant.
    
      (Court of Appeals,
    
    
      Filed April 30, 1886.)
    
    Judgment mat be taken against partner who answers that firm check WAS GWEN FOR HIS DEBT—CODE OF ClVIL PROCEDURE, § 1305.
    Where by the answer of one of the defendants, in an action brought on a check signed by firm name, it is alleged that.it was his individual obligation, and not that of the firm, plaintiff may; under section 1305 of the Code of Civil Procedure, apply for a separate judgment against him without awaiting the trial of the issue raised.
    
      Affirming judgment of general term court of common pleas, city of New York, in favor of plaintiff.
    
      James M. Smith, for appellant, Henry C. Barnard.
    
      John Graham, for respondent, Henry Stedeker.
   Andrews, J.

There is no denial, in the answer, of the averment in the complaint that the defendant Bernard executed the check in the firm name of H. O. Bernard & Co. Regarding the answer in the fight most favorable to the defendant, it simply denies that the check was made by the copartnership, and this denial is coupled with the averment that it was made by the defendant Bernard for his own purposes, and not in the business of the firm, which was known to the plaintiff when he received it. Upon the pleadings the defendant Bernard, by Ms own showing, was in any event liable upon the check. If the action had_gone to trial upon the issue presented, and it had been found m favor of the defendants, the plaintiff would nevertheless have been entitled to judgment agamst Bernard individually.

The common-law rule that, in an action against several defendants upon an alleged joint contract, the plaintiff must fail unless he establishes the jomt liability of all the defendants, is no longer the rule of procedure in this state. By the former Code, § 274, the court was authorized, m an action against several defendants, to render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment was proper. The court, in construing this provision, did not limit its application to cases of joint and several liability, but considered it as authorizing a separate judgment where a separate liability of some of the defendants was established on the trial, although the cause of action, as alleged in the complaint, was joint only. McIntosh v. Ensign, 28 N. Y., 169; Fielden v. Lahens, 2 Abb. App. Dec., 111. Section 1205 of the present Code is quite as comprehensive as section 274 of the former Code, and requires the same construction.

The plaintiff, however, was not, we tMnk, bound to await the trial of the issue before applying for judgment against the defendant Bernard. He, not having demed that he made the check, but, on the contrary, havmg alleged, under oath, in his joint answer with the other defendants, that it was his individual obligation, and not that of the firm, cannot object if the plaintiff takes him at his word, and elects so to consider it. We perceive no good reason why the plaintiff may not, in a case like this, apply to the court, before the trial of the issue, for judgment against the party, who, in his answer, while denying the joint liability, at the same time avers facts which show that the plaintiff is entitled, in any event, as against him, to a separate judgment.

We are not concerned with the position in which the other defendants will be placed by the separate judgment against Bernard. They do not appeal, and whether the judgment against Bernard merges and extinguishes any remedy against them it is unnecessary to consider. See Candee v. Smith, 93 N. Y., 349.

The judgment should be affirmed.

All "concur.  