
    Pruyn v. Black et al.
    
    
      Parties.—Interest.
    
    In an action against three, as partners, two only of whom are served, the plaintiff may recover against the latter, it appearing that they alone constituted the firm.
    A claim for personal services bears interest from the time each month's salary became due.
    Appeal' from the general term of the Supreme Court, in the first district, where judgment was affirmed upon the report of a referee.
    "This was an action for personal services as a civil engineer, brought by the plaintiff against Black and Wood, the appellants, and one Story, as co partners under the firm of Black, Wood & Co. The process was not served upon Story, nor did he appear to the action.
    The defendants Wood and Black appeared and denied the alleged partnership between them and Story, and each and every other allegation of the complaint. They also pleaded the statute of limitations.
    On the trial before the referee, it was proved that the defendants Wood and Black were in partnership; that they transacted business under the firm name of Wood, Black & Co.; that they employed the plaintiff as a civil engineer, at a salary of $1200 per annum, payable monthly; and that he rendered services under such retainer from the 1st December 1848, to the 1st May 1850. There was no evidence that Story was a member of the firm. The appellant had paid the plaintiff $75 on account. "The referee decided that the plaintiff was entitled to recover against the defendants Wood and Black; and allowed him interest upon each month’s salary from the time it fell due. He also reported that the complaint should be dismissed as against Story; judgment was • entered upon the report for $2330.43; which was affirmed at general term, on condition that the plaintiff remit the sum of $32.03, as of 25th July 1856; and this having been done, the defendants took this appeal.
    Goodman, for the appellants.
    Fairbanks, for the respondent.
   Welles, J.

It was well settled, at common law, that in an action for the breach of a contract, against two or more defendants, a verdict or judgment could not be given against one or more of them, without the others. (1 Chitty Pl. 34, 35, and authorities therein cited.) The same doctrine has been uniformly held and acted upon by ^le cour*s "this state, previous to the enactment of the code of procedure.

■ But I think this rule has been changed by the legislature; subdivision 2 of § 136 of the code provides, that where the action is against two or more defendants, and the summons is served on one or more, but not on all, of them, if the action be against defendants severally liable, the plaintiff may proceed against the defendants served, in the same manner as if they were the only defendants. The third subdivision of the same section declares, that if all the defendants have been served, judgment may be taken against any or either of them, severally, where the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them, or any of them, alone; and by § 274, judgment maybe given for or against one or more of several plaintiffs, and for or against one or more of several defendants.

If the defendant Story was served with the summons, this case would come precisely within the third subdivision of §136. If he was not served, which I think we must intend, then, I think, it is also a case under the second subdivision of that section. The only objection to holding- it a case under the second subdivision, arises out of the expression there used: If the action be against defendants severally liable.” The expression “ severally liable,” when applied to a number of persons, usually implies that each one is liable alone. But when the whole of the section referred to is considered, I think it plain, that the intention was, to allow a plaintiff to proceed against the defendants served, provided they were liable severally, or in distinction from such as were not served; that the word severally, in that connection, is to be understood as referring to all the defendants served, the same as if they were one person. It cannot, I think, be fairly intended, that a plaintiff was to be allowed a larger privilege, in a case where all the defendants were served, and where he failed to establish a joint liability against all, than in a case where the defendants, in respect to whom he failed .to establish the liability, had not been served with process.

* In the case under consideration, the plaintiff proved a joint liability against the defendants Black and Wood, who were the only defendants appearing and defending, and failed in establishing'any liability against the defendant Story, who, it does not appear, was brought into court at all. I think, therefore, that the judgment was properly entered against the defendants Black and Wood.

The referee properly allowed the plaintiff interest on the amount due at the end of each month of the plaintiff’s service, from the time it became due. The contract proved and found by the referee, was, that the plaintiff was to be paid monthly; at the expiration of each month, the monthly allowance was due and payable, and not being paid, interest was allowable on the several amounts. (Still v. Hall, 20 Wend. 51.)

The referee’s report is dated July 25th, 1856. He finds • due the plaintiff, on that day, $2230.43, for which iudgment was entered, together with $252.83, costs. The complaint is dated December 15th, 1854; it states that the defendants are indebted to the plaintiff for the work and services mentioned, in the sum of $1506, and in the sum of $487.26, for interest thereon, and demands judgment for the said $1506, and interest thereon from the date'of the complaint", and said sum of $487.26.

The appellants complain that the judgment is for too large an amount, and make the following statement:

On appeal to the general term, the judgment was affirmed, on the plaintiff remitting the sum of $32.03, as of the date of July 25th, 1856.. The plaintiff thereupon remitted the last ^mentioned sum, and perfected judgment in his favor, as a judgment of the date of November 12th, 1856, for $2450.52.

It "will be seen by a computation, that * taking the amount claimed in the complaint, at $2162.93, according to the defendants' statement, and the costs before the appeal, $252.83; $2415.76, with interest thereon, from the date of the'judgment, to November 12th, 1856, $50.61, the amount of the judgment finally entered up, is about $10 less than the amount claimed, with the interest on that sum, and on the costs before the appeal, to November 12th, 1856. The defendants, therefore, have no just ground to complain of the amount. "The objection is, not that the amount found due by the referee is unjust, or greater than the evidence warranted, but that it is more than the demand of judgment would warrant. For the foregoing reasons, I think the judgment should be affirmed.

Judgment affirmed.  