
    Charles Kriser, Respondent, v. John C. Rodgers, Jr., and Eugene F. McGee, Defendants, Impleaded with Martha M. Rodgers, Appellant.
    First Department,
    February 4, 1921.
    Judgments — entry of judgment against defaulting joint debtor erroneous where action not severed — severance of action after judgment entered does not cure error — vacating judgment entered by mistake.
    Where in an action on a promissory note the maker is not served and the payee defaults, it is improper to enter judgment against him without entering an order of severance.
    An order subsequently entered severing the action does not correct the error, but the proper practice is for the plaintiff to move to vacate the judgment, if it was entered through mistake, and then either sever the action as to the defaulting defendant or proceed to trial, and if successful,' apply for a direction of judgment against all the defendants sued, and if unsuccessful the court may grant judgment in favor of the defendants who appeared and litigated the issue and against the one who defaulted.
    Appeal by the defendant, ‘Martha M. Rodgers, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of December, 1920, granting plaintiff’s motion to sever the action and allow the plaintiff to proceed against certain defendants.
    
      Thomas E. O’Brien of counsel [Thomas F. Conway, attorney], for the appellant.
    
      Leon Brof of counsel [Ginzburg & Picker, attorneys], for the respondent.
   Page, J.:

The action was brought to recover upon a promissory note. The maker has not been served. The payee defaulted, and the plaintiff without entering ah order for severance, entered judgment against him on July 27, 1920. Thereafter a notice of trial was served by the plaintiff on the attorney for the indorser who had appeared, and a motion was made to place the cause on the special calendar, Trial Term, Part II, for trial. In opposition to this application the appellant urged the objection of the entry of judgment against one defendant without severing the action. Thereupon, the plaintiff moved for an order severing the action nunc pro tunc. The order entered on the motion does not sever the action nunc pro tunc as of July 27, 1920, but in prcesenti.

The action being at law only one judgment could be entered unless the action is severed, as provided in section 456 of the Code of Civil Procedure. The order of severance should precede the entry of judgment, the theory of the law being that where parties are severally hable they may, at- the option of the plaintiff, be united in one action or separately sued. Therefore, when plaintiff is in position to take judgment against some, but not all of the defendants, he should be allowed to separate the action into two actions, enter judgment in one and proceed with the other.

The judgment was improperly entered. The plaintiff’s attorney alleges that it was so entered through his inadvertence and mistake. The proper practice is for the plaintiff to apply to vacate the judgment. (Weston v. Citizens’ Nat. Bank, 88 App. Div. 330, 336.) He can then either sever the action and properly enter judgment against the defendant in default, or he may proceed with the trial, and if successful, apply to the court upon the trial for a direction of judgment against all the parties defendant who have been sued. (Code Civ. Proc. § 1214.) If unsuccessful the court may grant judgment for the defendant who appeared and litigated the issue and for the plaintiff against the defaulting defendants. (Code Civ. Proc. § 1204.)

The order will be reversed, without costs, and the motion denied.

Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.

Order reversed, without costs, and motion denied.  