
    Julia P. Chevers, Resp’t, v. Carrie M. Damon et al.
    
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    1. Foreclosure—Costs—Service by publication.
    Where a judgment entered against a mortgagor contains nothing to show that the judgment creditors are partners, extrinsic proof would be necessary to render personal service on one binding upon the others, and hence the plaintiff in an action to foreclose the mortgage has a right, upon a refusal of an appearance for the absent judgment creditors, to serve them by publication, and the expense thereof is properly allowable in his bill of costs.
    3. Same—Settlement.
    Where the plaintiff in foreclosure has received his money and assigned the bond and mortgage under an order of the court directing him to do so if required by a subsequent mortgagee, this constitutes a settlement within the meaning of § 3353 of the Code.
    Appeal from order settling and allowing plaintiff’s costs in an action to foreclose a mortgage, upon a settlement of the action pursuant to an order of this court by assigning the mortgage to an assignee named by one of the defendants in this action, upon his paying the amount due on the mortgage the interest and costs; in so far as such order allows plaintiff $30, one-half allowance by statute, and $30 for publishing summons and notice.
    The defendants John Clark, Stewart ■ Clark and William Clark recovered judgment in the supreme court for the county of New York and also in the city court of New York, and filed transcripts thereof in the office of the clerk of the county of Westchester, whereupon said judgments were docketed by the said clerk of the county of Westchester on the first day of November, 1890, a date subsequent to the recording of the mortgage sought to be foreclosed in this action, and a transcript of the docket of judgments kept by the clerk of the county of Westchester will be found in folios 50 to 53 of the printed papers on appeal herein.
    The said docket shows a judgment in favor of John Clark, Stewart Clark and William Clark without in any manner designating them as copartners, and there is nothing that appears from the said docket to show that their interest might not have been several rather than joint.
    
      Charles B. Meyer, for app’lts, Clark and Clare; Jarvis W. Mason, for resp’t.
   Pratt, J.

The judgments recovered by the members of the firm of Clark & Brother would not necessarily show that a partnership existed between them. They were all proper parties to the foreclosure. Prima facie they were necessary parties. A service upon one only of them would not suffice to extinguish the rights of the others without the aid of extrinsic proof.

The plaintiff’s attorney applied to appellants to voluntarily appear in the action for the, absent defendants. When that request was refused, the plaintiff was entirely in the right in publishing the summons to bring them in.

The appellants are in error in their contention that there has been no “ settlement ” of the action. The plaintiff has received his money. If he has not discharged the cause of action, it is because at the instance of appellants the plaintiff was required to assign the cause of action.

We think that is a settlement of the action within the meaning of the statute.

The taxation was right and the order appealed from is affirmed, with ten dollars costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not sitting.  