
    Belinda Hees vs. Aaron J. Nellis, administrator &c.
    A bond was given, by the defendant’s intestate, to the heirs of L., conditioned for the payment of $400, on the death of their mother, “ to them, their heirs or their agents, or whoever they or either of them may designate.” It recited that Jacob and John L., sons of Mrs. L., “ have signed off and relinquished all claim, and are hereby and thereby excluded from such right or share as such heirs, in said sum.” In an action upon the bond, by one of the obligees, the complaint, after setting out the bond, and the release of two of the heirs, alleged that the money mentioned in the bond was due from the intestate for money received out of a farm formerly owned by L.; that the plaintiff was one of the heirs of L., and as such entitled to an equal eighth part of said $400, “ there being eight and only eight heirs, and each is entitled to one-eighth of said sumthat several of said heirs had been paid their respective shares, but the plaintiff had not been paid any part of her share. An express promise to pay was alleged. The defendant, in his answer, set up as a defence the non-joinder of the other seven owners of the farm, as plaintiffs, and, on the trial, moved for a nonsuit, on that ground. Held, that although the bond was, in form, payable to the obligees jointly, yet as the interest was several, the plaintiff was entitled to sue alone.
    
      Held, also, that although the promise to pay the plaintiff her proportion might not be founded on a new consideration, so as to enable her to sue and recover upon it, instead of the bond, yet that it might be taken into consideration in determining whether the plaintiff’s interest was jointly with the other heirs, or separately to herself.
    
      Held, further, that the defect of parties, if any, could not be taken advantage of by answer, but must be set up by demurrer; the averment in the complaint being equivalent to alleging that the persons not joined as plaintiffs were living.
    Although it is more in conformity to the established practice to require the successful party to move for costs, yet a judgment should not be set aside— when it appears that the right to costs was clearly established—merely because it was entered up by such party without having obtained an order allowing him costs, on a motion made for that purpose.
    PPEAL from a judgment in favor of the plaintiff against the defendant as administrator of the estate of Jonah Nellis, deceased, and from an order made by the Special Term of Monroe county, denying a motion to set aside ijhe judgment in this action, because a judgment for costs had been entered up by the plaintiff, without having obtained an order allowing her costs, on a motion made for that purpose.
    The action is on a bond given by the intestate to the heirs of John J. Lyke, conditioned for the payment of $400, on the death of their mother, “ to them, their heirs or their agents, or whoever they or either of them may designate.” ' The bond further recited that Jacob and John Lyke, sons of Mrs. Lyke, “have signed off and relinquished all claim, and are hereby and thereby excluded from such right of share as such heirs, in said sum.”
    The complaint, after setting out the bond, and the release of two of the heirs, alleges that the money mentioned in the bond was due from the intestate for money received out of a farm formerly owned by John J. Lyke; that the plaintiff is one of the heirs of the said John J. Lyke, and as such entitled to an equal eighth part of said $400, there being eight and only eight heirs, and each is entitled to one-eighth of said sum. That several of said heirs have been paid their respective shares, but the plaintiff has not been paid any part of her share.
    It is also alleged that the defendant had repeatedly promised to pay to the plaintiff her share, and that the plaintiff offered to refer the claim, which the defendant declined to do, but promised to pay it.
    The defendant denies certain allegations of the complaint, and admits others; and sets up the non-joinder of the other seven owners of the farm as a further defence.
    On the trial the defendant moved for a nonsuit because of the non-joinder of the other obligees .in the bond. The motion was overruled, and the defendant’s counsel excepted.
    The plaintiff put in evidence a letter from the defen- ' dont to the plaintiff, in which he said he would not be able to pay the amount due her from her father’s estate until about the 1st of August, 1870, • as. collections were very slow, and the business he was engaged in commanded a very large amount' of funds, but he had a matter with one Hoadley that he would turn, if it met her approval. The court ordered judgment for the plaintiff for the amount due the plain biff with costs.
    The plaintiff’s attorney gave notice of taxation of costs, and they were taxed and included in the judgment.
    The defendant’s attorney then moved to set aside the judgment because costs had not been applied for on motion. The motion was denied, with $10 costs. From the judgment and order the defendant appeals.
   By the Court, Mullin, P. J.

The bond is in form payable to the obligees jointly, but the interest is several, and hence one may sue alone. (1 Chitty on Pl. 11.)

The promise to pay the plaintiff her proportion may not be founded on a new consideration so as to enable her to sue and recover upon it instead of the bond, yet it may be taken into consideration in determining whether the plaintiff’s interest is jointly with the other heirs or separately to herself. Upon the case, as it appears before us, I think the plaintiff was entitled to sue alone. (Van Wart v. Price, 14 Abb. 4, note. Homer v. Whitman 15 Mass. 132.)

If, however, we are wrong in this view of the case, we are of opinion that the defect of parties, if any, could not be taken advantage of by answer, but must be taken advantage of by demurrer.

Section 144 of the Code provides, that a defect of parties may be taken advantage of by demurrer. When the defect does not appear on the face of the complaint it may be taken advantage of by answer. (Id. § 147.)

The. complaint alleges that there were eight heirs to whom, by the bond, the money was payable. The language is, “there being heirs and eight heirs only, each of whom is entitled &c.” The complaint speaks in the present tense and refers to the time of verifying it. It is equivalent to an allegation that these seven other persons to whom this bond is payable are not joined and they are living.

It was said in De Puy v. Strong that it is only when evidence is necessary to make the defect apparent, that an answer setting up the defect of parties is permitted. In that case the plaintiffs alleged in their complaint that they owned portions of the land sought to be recovered which were less than the whole. Whether they gave the names of the other owners, or alleged they were living, is not stated, as it was held to be a case in which the defect should be taken advantage of by demurrer. All that it is said that the complaint contained is, that there were other owners of interests in the land besides-the plaintiff. Who they were, and whether they were living, was probably stated, as it was held that the defect could be, and should have been, taken by demurrer.

I think the averment in the complaint is equivalent to alleging that the persons not joined as plaintiffs were living. The judgment should be affirmed.

On the facts alleged and* proved on the trial, the plaintiff was entitled to costs; and although it would have been more in conformity to the established practice to have required the plaintiff to move for costs, yet the judgment should not be set aside when it appears that the right to costs was clearly established. Had the defendant’s counsel stated, in his affidavit for the motion to set aside the judgment, any fact showing that the plaintiff’s right to costs were even doubtful, there would have been some excuse for making the motion. But nothing whatever is shown on the subject, except the failure to conform to the practice. This would not justify the court in setting it aside, nor this court in reversing the order because it was not set aside.

[Fourth Department, General Term, at Buffalo,

June 3, 1873.

Mullin, Talcotl and B. B. Smith, Justices.]

The order and judgment are affirmed, with costs of_ the appeal to be paid by the administrator personally.  