
    Elwood S. Hand, App’lt, v. Charles P. Rogers et al., Resp’ts.
    
      (New York City Court, General Term,
    
    
      Filed March 19, 1895.)
    
    Judgment—One of several defendants.
    Under § 1305 of the Code, a separate judgment is authorized where a separate liability of some of the defendants is established at the trial, though the cause of action, as alleged in the complaint, is joint only.
    Appeal from a judgment, dismissing the complaint.
    
      Charles De Hart Brower, for app’lt; John Henry Hull, for resp’ts.
   Newburger, J.

The complaint alleges that the defendants were, and still are, copartners in business, and that on or about ■the 30th day of November, 1889, they made a contract with the plaintiff, whereby the plaintiff was to insert the defendants’ advertisement in a book published by him, for which plaintiff was to receive $205 in trade; that the plaintiff duly inserted the advertisement, and demanded payment, which was refused. The answer was a general denial. On the trial it apperred that the present copartnership was not formed until after the making of the ■contract sued on, and that at the time of making the contract the ■copartnership consisted of the defendant Charles P. Rogers and one Whitcomb. The case was tried by the court without a jury. At the close of the plaintiff’s case, plaintiff’s counsel moved to •dismiss the complaint as against all the defendants except Charles P. Rogers, and at the close of the case he moved for judgment ■against the defendant Charles P. Rogers, both of which motions were denied by the trial justice, who dismissed the complaint as against all the defendants, to which ruling the plaintiff duly ex■cepted. It was not denied by the defendant Charles P. Rogers -that he signed the contract with the plaintiff. He simply denied that the other defendants were his copartners at the time of making the contract. Upon the evidence, the defendant Charles P. Rogers was, in any event, liable upon the contract. It has been repeatedly held that under section 1205 of the Code a separate judgment was authorized, where a separate liability of some of the defendants was established at the trial, although the" cause of action, as alleged in the complaint, was joint only. Owen v. Connor, 33 St. Rep. 144; Stedeker v. Bernard, 102 N. Y. 327. It follows that the judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event.

Vam Wyck, J. concurs.

Ehrlich, C. J.

(dissenting).—I think that all there is to this action has been disposed of by the trial judge in conformity with the decisions of the general term on the former appeals. There decisions must be taken as establishing the law of the case so far as this court is concerned. I find no error, and judgment should be affirmed, with costs.  