
    The National Broadway Bank, Pl’ff, v. Humphrey H. Swift et al., Def’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    Pleading—Frivolous answer—Merger of note in judgment.
    In an action on a promissory note made by a firm, the answer set up a former action upon said note and the recovery of judgment therein against the other partners, and claimed that the note was merged therein and that the same was a bar to this action. Held, that the question raised by the answer was not so clear in favor of plaintiff as to justify the court in striking out the answer as frivolous.
    Appeals' in two cases by defendant Hitch from orders overruling his answer as frivolous, and from the judgment entered thereon.
    The actions were brought upon promissory notes made by the firm of H. H Swift & Co., of which defendant Hitch was a partner. The answer was as follows:
    “ The defendant Henry F. Hitch, by Henry Be Forest Weekes, his attorney herein, separately answers the complaint herein as follows: He alleges that heretofore the plaintiff commenced an action upon the promissory note alleged in the complaint herein in the supreme court, and that on the 21st day of July, 1886, in the said supreme court, in said action, a judgment was entered and recovered by said plaintiff against Humphrey H. Swift and Alfred Gr. Swift, as makers and endorsers of said promissory note under the said firm name of H. H. Swift & Co., which judgment was for the sum of five thousand and seventy-nine and 22-100 dollars, damages and costs, and was recovered for and upon the same cause of action for and upon which said plaintiff commenced and is prosecuting this action against this defendant, impleaded with said Swifts, and that the said judgment so entered and recovered has not been vacated, reversed, or modified, but still remains with the same force and effect which it had at the time of the rendition and recovery thereof; and this defendant alleges, on information and belief, that the said judgment so recovered merges the said promissory note, and all and every cause of action thereon, and is a bar to any recovery thereon or herein against this defendant, and that by the entry and recovery of said judgment the said plaintiff is precluded from maintaining this action against this defendant. Wherefore said defendant demands judgment against the plaintiff for the dismissal of the complaint and for the costs of this action.”
    Respondent contends that there is no merit in the appeal of defendant Hitch, because the complaint, though on a joint obligation, was an obligation upon which each partner was severally, as well as jointly, liable, and that there was no merger of the cause of action by the entry of judgment against the other partners, and that the common law rule has been changed in that respect in this state, as indicated by the Code, and the rule only applied when all the partners were not joined in the original action.
    
      H. A. Forster, for app’lt; W. F. MacRae, for resp’t
   Per Curiam.

We are of opinion that the points of the respondent demonstrate beyond question that the answer which was-stricken out as frivolous was not subject to that criticism.

The order appealed from has been argued by him precisely the same as though it came before this court upon a demurrer; and the question involved is certainly not so clear in favor of the respondent as to justify the court in striking out the answer as frivolous.

The order should be reversed, with ten dollars costs and disbursements.

Yan Brunt, P. J., Daniels and O’Brien, JJ., concur.  