
    Industrial Bank of Schenectady, Plaintiff, v. Walter Jack et al., Defendants.
    County Court, Schenectady County,
    January 22, 1957.
    
      
      Gerald E. Hennessy for Matthew J. Maderic, defendant.
    
      George E. Severson for plaintiff.
   Archibald C. Wemple, J.

This action was commenced on January 12, 1953, on a conditional sales contract to recover the balance owing to the plaintiff, as assignee from Kaye-Kars, Inc., because of the failure of the defendant, Walter Jack, in making monthly payments in accordance with said contract for the sale of a 1948 Buick automobile.

The defendants were sued both jointly and severally as purchasers under the conditional sales contract. The defendant, Walter Jack, defaulted in appearing or answering, but the defendant, Matthew J. Maderic, answered by a general denial and six affirmative defenses. Default judgment was taken by the plaintiff against Walter Jack on October 22, 1953 without obtaining an order of severance and continuance of the action against Maderic. Thereafter, on December 16, 1953, a default judgment was taken against defendant Maderic, which judgment was vacated on appeal by the Appellate Division, in December, 1954 (284 App. Div. 1083).

Section 474 of the Civil Practice Act, at the time the default judgment was taken, read, in part, as follows: “2. Where the action is against two or more defendants, and a several judgment is proper, the court may render judgment, or require the plaintiff to take judgment, against one or more of the defendants ; and direct that the action be severed, and proceed against the others as the only defendants therein.”

Defendant Maderic contends that the failure of the plaintiff to obtain an order of severance and continuance when it took the default judgment against defendant Walter Jack, merged the entire cause of action into that judgment, thereby releasing Maderic.

The court is of the opinion that under our modern system of liberal practice, the failure of the plaintiff in not obtaining an order of severance and continuance is not fatal to its cause of action against codefendant Maderic, and the opening of the default judgment against Maderic by the Appellate Division revives that cause of action.

Motion denied, Submit order.  