
    George Kaplan, Respondent, v. Isaac L. Shapiro et al., Appellants.
    (Supreme Court, Appellate Term,
    April, 1907.)
    New trial — Grounds — Verdict or findings contrary to law or evidence — Verdict contrary to instructions.
    Saving questions for review — Objections and exceptions in general — Necessity—Instructions.
    Joint agreements and liabilities — On contracts — Under joint debtor acts—Compromise by joint debtors.
    Where a verdict is found contrary to the instructions of the court, it will be set aside without regard to the legal accuracy of the instructions; but only the party aggrieved by the disobedience of the jury has a right to complain,
    
      Where no exception is taken to the charge of the court, a judgment will not be reversed upon the ground that instructions to the jury were legally inaccurate.
    Under the provisions of section 1942 of the Code of Civil Procedure, the mere payment by one partner of his part of the liability upon notes of the firm does not discharge the other partner from his share of the indebtedness.
    Where, in actions brought by the payee of promissory notes against the makers who signed as partners, defendants answer separately, both pleading a general denial and the Statute of Limitations, and one adds a plea of release and payment and offers in evidence the receipt for his part of the indebtedness on the notes, but the evidence is conflicting as to whether in fact any money was paid when the receipt was given, and the trial justice instructs the jury, in substance, that, if they believe the plaintiff received the money called for by the receipt, their verdict should be for that defendant, and the jury find in favor of the plaintiff for the face of each note, less the amount receipted for and a partial payment made by the other defendant, he is not entitled to have the verdict set aside because it was contrary to the instruction of the court.
    Appeal by the defendant, Isaac L. Shapiro, from three separate judgments, rendered in favor of the plaintiff in the Municipal Court of the city of New York, thirteenth district, borough of Manhattan, upon the verdict of a jury.
    Henry Lieb, for appellant.
    Feltenstein & Bosenstein (Moses Feltenstein, of counsel), for respondent.
   Giegerich, J.

These three actions were tried together, but a separate judgment was entered in each. They are brought upon promissory notes made by the defendants, Isaac L. Shapiro and Michael Edelstein, as copartners doing business under the firm name of Shapiro & Edelstein, to the plaintiff. The note sued on in action No. 1 (calendar No. 80), is dated December 1, 1890, and is for $200, payable one month after date; the one in No. 2 (calendar No. 81), dated October 3, 1890, is for $241.86, payable four months after date, and the one in No. 3 (calendar No. 82), is dated October 3, 1890, and is for the payment of $250' within ninety days after date. The notes in suit are annexed to the return in action No. 2. The defendants answered separately in each action, Shapiro pleading a general denial and the Statute of Limitations, to which Edelstein in his answer added a plea of release and payment. Upon the trial the plaintiff testified that, after the expiration of six years from the maturity of the notes, viz., in January, 1902, the defendant Shapiro paid to him sums aggregating $55 on account of the notes in suit, and promised to pay the balance due thereon. There was, however, no proof offered that the defendant Edelstein participated in such payments or made any new promise to pay the notes.; and so the complaint was dismissed as to him. The defendant Shapiro, testifying in his own behalf, denied that he made any payment on account of the notes or that he promised to pay the same; and he showed, by the testimony of Edelstein and of Edelstein’s brother Louis, that, after the dissolution of the partnership, viz., on November 12, 1891, Edelstein, in the presence of Louis, paid to the plaintiff the sum of $346, in bills, and obtained the following receipt: “New York, November 12, 1891. Need. Three hundred and Forty six $346 00/100 for his part of payment from ther padnership of Shapiro & Edelstein (sg) George Kaplan.” Edelstein and his brother testified that when that payment wias made he asked the plaintiff how much he owed him and the plaintiff named the sum above mentioned, which was thereupon paid. The plaintiff and his wife, on the other hand, gave testimony to the effect that when the receipt was given no money whatever was paid, and that the receipt was given merely for the purpose of being shown to his then intended father-in-law, from whom he expected to receive a couple of thousand dollars upon his marriage, and who, upon learning of his indebtedness to the plaintiff, inquired of him about it and was informed that it had been paid. The justice, adverting to the foregoing testimony relative to the defense of release, charged the jury in substance that, if they believed the plaintiff received the sum of money called for by the receipt claimed to have been given by him to Edelstein, their verdict should be for the defendant. The plaintiff duly excepted to such instruction. The jury, having returned from their deliberations, through their foreman, announced, “We find that the man shall pay each and every note,” and the court thereupon directed them to retire in order to bring in a proper verdict. The jury returned and rendered the following verdict: “ We find that the man shall pay on the face of each and every note, and deduct the $345 and $55.” The defendant Shapiro thereupon moved to set aside the verdict, upon the various grounds specified in section 254 of the Municipal Court Act, which motion was subsequently denied; and judgment was entered in each action in favor of the plaintiff after deducting pro rata the sums above mentioned. The defendant Shapiro has appealed to this court and urges that the verdict of the jury is contrary to the above instructions of the court, and that the judgment should consequently be reversed. While such course would undoubtedly follow where the instruction is correct (Bigelow v. Garwitz, 15 N. Y. Supp. 940; 40 N. Y. St. Rep. 580; 11 Ency. Pl. & Pr. 60), there is quite a diversity of opinion, in jurisdictions other than our own, where the charge is incorrect; the courts in some States holding that the judgment must be reversed, while in others there are decisions which maintain the contrary view. 11 Ency. Pl. & Pr. 60, and citations. In this State, however, the rule is fairly deducible from the adjudications that, where a jury have found a verdict contrary to the instructions of the court, it will be set aside without regard to the legal accuracy of the instructions; but that only the party injuriously affected by the disobedience of the jury has the right to complain. In Sweetman v. Prince, 62 Barb. 256, it was held that the jury were bound to take the law from the court and could not disregard an instruction upon that subject, however erroneous it might be, and that, if they found a verdict contrary to such instructions, it was the duty of the court to set it aside. The case just . cited was reversed on another point (26 N. Y. 224), but it is quoted with approval by Mr. Baylies in his very useful work on Yew Trials and Appeals (2d. ed., p. 542). The doctrine of that case, although the case itself is not mentioned in the opinion, seems to have been approved by the Court of Appeals in Wood v. Belden, 54 N. Y. 658, with the limitation, however, that only the party injuriously affected by the disobedience of the jury has the right to complain. See Baylies N. T. & App. (2d. ed.) 542. The accuracy of the instruction given to the jury, as above noted, is questioned by the appellant; but, since he did not except to it upon the trial, we would not be justified in reversing the judgment upon that ground. Muessman v. Met. St. Ry. Co., 76 App. Div. 1. Becourse must therefore be had to the record with a view of ascertaining whether or not, in any aspect of the ease, the appellant has really been harmed by the instruction referred to, although the legal proposition therein contained may not have been correct; and, if he has not, then, under the rule above stated, the error may be disregarded. It will be seen from a reading of the paper claimed to have been given by the plaintiff to Edelstein, which is annexed to the return in action Mo. 2 (calendar Mo. 81) and is above set forth, that it is a mere receipt for the payment of the latter’s part of the liability on the notes in suit and that, in the light of the authorities hereafter cited, it cannot fairly be construed as a release of the entire indebtedness. Partners are jointly and severally liable; and the payment by one partner of his part of the liability and his consequent release from the partnership debt, do not, without more, discharge the other partner from his share of the indebtedness, as will be seen from the following provisions of section 1942 of the Code of Civil Procedure, viz.: “A joint debtor may make a separate composition with his creditor, as prescribed in this section. Such a composition discharges the debtor making it; and him only. The creditor must execute to the compounding debtor a release of the indebtedness, or other instrument exonerating him therefrom. A member of a partnership cannot thus compound for a partnership debt, until the partnership has been dissolved by mutual consent or otherwise. It that case the instrument must release or exonerate him, from all liability incurred by reason of his connection with the partnership. An instrument, specified in this section, does not impair the creditor’s right of action against any other joint debtor, or his right to take any proceeding against the latter; unless an intent to release or exonerate him appears affirmatively upon the face thereof.” The Appellate Term, in Siefke v. Minden, 40 Misc. Rep. 631, construing this section, through Mr. Justice Gidersleeve, said (p. 634): “ Section 1942 authorizes a creditor to compromise with one joint debtor upon releasing him from the joint obligation, without releasing the other joint debtor, and to compromise with a partner after the dissolution of the copartnership, upon giving him a discharge from all liability, as partner, to the plaintiffs, with the same effect.” There the plaintiffs, as executors, sued two partners after dissolution of the partnership for rent and water rates undei a lease from the former’s testator to the latter. The action having been severed, a judgment was recovered against one of the partners for $950.81, and the plaintiffs accepted from him $500 in satisfaction of the judgment as to him. Thereafter, a supplemental complaint was served and the result was a verdict for the plaintiffs against the other partner by direction of the court. On appeal it was held that the defendants were joint debtors as well as partners between themselves, and that, within sections 1942 and 1946 of the Code of Civil Procedure, the plaintiffs could compromise with one of the partners without releasing the other from the residue of the demand or precluding a continuance of the action against him. It thus appears from these authorities that the alleged payment by Edelsteinto the plaintiff of a part of the partnership debt did not operate as a release of the appellant from the other part thereof. Assuming, therefore, as we must from the finding of the jury, that such payment has been established and that all other controverted questions of fact have been resolved in plaintiff’s favor, it is manifest that the verdict which was rendered is right. Under these circumstances, there is no just cause for complaint on the part of either party, especially by the appellant, who as above shown had only pleaded the Statute oi Limitations in addition to a genera] denial and, therefore, ■under the form of his answer, would not, but for such instruction, have been in a position to avail himself of the payment so made by his former partner. The appellant was therefore the gainer and not the loser by the instruction, since it resulted in the jury deducting from the partnership debt the part so paid by- Edelstein, which could not have been done but for such instruction. From all this, it is evident that the appellant was not injuriously affected by the jury’s disregard of the instruction; but, on the contrary, he profited by it, and has no right to complain.

The several judgments appealed from should, therefore, be affirmed, with costs.

Gildersleeve and Erlanger, JJ., concur.

Judgments affirmed, with costs.  