
    Charles Hofferberth, Respondent, v. George Nash, Appellant.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Pleading — Issues and what must he proved — Effect of consent to try issues not embraced in the pleadings.
    Saving questions for review — Presentation and reservation of questions in general — Question not raised at trial.
    ■ Former adjudication — Who are concluded — Parties and privies. (Code Civ. Pro. § 1933.)
    Limitation of actions — Disabilities and exceptions — Suspension in general: Pleading and evidence — Plea of the statute.
    Joint agreements and liabilities — On contracts — Under joint debtor acts — Recovery where all are not served — Proceedings against joint debtor not summoned — Evidence.
    Where, upon the trial of an action on a judgment, by the tacit consent of the parties the action is resolved into one to establish the liability of a defendant not summoned' in the former action, a defense' that the judgment was not properly docketed and that leave of the court had not been obtained becomes immaterial and irrelevant.
    A question as to the identity of the defendant as the joint debtor of the defendant in the judgment, which appeared from the identity of name as well as by his attitude upon the trial which was consistent only with an admission of that fact, may not be raised for the first time upon appeal.
    The liability of the defendant having been established, the former judgment was evidence of the extent of the plaintiff’s demand.
    
      The action was not barred in six years from the time the original cause of action accrued, the former suit having been commenced within that period; nor in ten years from the recovery of the former judgment, this action not being upon that judgment.
    The clerk’s omission to write the words “ not summoned ” upon the docket as directed by section 1936 of the Code of Civil Procedure does not impair the judgment creditor’s right to proceed against a defendant not summoned.
    • Appeal from a judgment of the City Court of the city of New York, entered for the plaintiff upon a verdict directed in his favor.
    Action under section,1937 of the Code of Civil Procedure to enforce the liability of one of two copartners not summoned in a former action brought to enforce a copartnership debt.
    James A. Allen, for respondent.
    Pace & Stimpson (Elias B. Goodman and H. C. S. Simpson, of counsel), for appellant.
   Bischoff, J.

By tacit consent upon the trial (Frear v. Sweet, 118 N. Y. 454), the parties resolved this action from one upon a judgment of the City Court of New York, alleged to have been recovered March 4, 1884, against George Collins and George Nash, as copartners, jointly and severally, into one brought to establish the liability of Nash, who was admittedly not served with the summons in the former action (Code Civ. Pro., §§ 1932-1941) ; and thus the action proceeded to judgment for the plaintiff upon a verdict directed in his favor. With the substitution of the issues, therefore, the defenses that the judgment was never duly docketed and that leave of court to the action had not been had (available under section 1913 of the Code of Civil Procedure had the action proceeded as commenced) necessarily became immaterial and irrelevant. The identity of the names of the defendant in this action and of Collins’ copartner was prima facie evidence of the identity of the persons; but, aside from that, it appears from the record of this appeal that the defendant’s membership of the firm of Collins & Hash, the plaintiff’s debtors for merchandise sold and delivered to them, was not only undisputed upon the trial, but that the defendant’s attitude was consistent only with an admission of the fact. The trial court’s attention was not directed to any question of that kind, and the action was tried by counsel for both parties and disposed of by the court upon the theory of such assumed or admitted identity. For the purposes of this appeal, therefore, the defendant will not be permitted to shift his position. Campbell v. Birsch, 60 N. Y. 214; Wilson v. Rocke, 58 id. 642; see also cases collated in Baylies N. Tr. & App. (2d ed.), 332, and in note on “ Questions raised in the first instance on appeal,” 5 Silver. Sup. Ct. 142.

The former judgment was evidence of the extent of the plaintiff’s .demand (Code Civ. Pro., § 1933; Vereinigte Pinsel-Fabriken v. Rogers, 52 App. Div. 529), the defendant’s liability appearing from his admitted membership of the firm of Collins & Hash and the uncontroverted testimony of Charles F. Hofferberth, the plaintiff’s son, to the fact of the sale to the firm of the merchandise for which the former recovery was had.

• The defense that this action was not brought within six years after the original cause of action had accrued was not available to the defendant, since it did not exist when the former action was brought (Kramer v. Schatzkin, 21 Misc. Rep. 206) ; and the contention that the plaintiff’s recovery was unauthorized because this action was not commenced within ten years (Code Civ. Pro., § 388) after the recovery of the former judgment, proceeds upon counsel’s erroneous assumption that the action was one upon that judgment. This, action proceeded upon the defendant’s original liability as a member of Collins & Nash. Morey v. Tracy, 92 N. Y. 581.

The provision of the Code of Civil Procedure, section 1936, requiring the clerk of the court or county with whom the judgment-roll is filed or docketed to “write upon the docket, opposite or under the name of each defendant upon whom the summons was not served, the words ‘not summoned ’ ” prescribes the duties of that official; but his omission or neglect in that respect does not have the effect of impairing the judgment creditor’s right to proceed against a defendant not formerly summoned. Section 1937 authorizes the latter action immediately after the recovery of a judgment against one or more of a number of joint debtors, and the recovery takes effect when the judgment is regularly entered. Whitney v. Townsend, 67 N. Y. 40. Obviously, therefore, the entry upon the docket, prescribed by section 1936, is not a condition precedent to the action authorized by section 1937.

The judgment and order appealed from should be affirmed with costs to the respondent.

Scott and Tétjax, JJ., concur.

Judgment affirmed, with costs to respondent.  