Maples v. Mackey , 29 N.Y. Sup. Ct. 228 ( 1880 )

Learned, P. J.:

When this case was before this court the first time, we held that the judgment against Amgell was not void by reason of the irregularities in the admission of service. (22 N. Y. Sup’m. Ct., 537.) And it appears now affirmatively by the evidence on the trial, that. Angelí was, in fact, served with the summons at the time when he .gave the admission. Jurisdiction, therefore, was obtained.

' By the old Code (§ 99), an action is commenced as to each defendant, when the summons is served on him or on a co-defendant, who is a joint contractor, &c. (See, for analogy, 2 B. S., p. 299, § 38.) Angelí & Mackey were joint contractors on this draft; and fhe money received thereon was used in the firm business. The summons was served on Angelí August 19, 1858, and he was a co-defendant with Mackey. Therefore, the action was on that day commenced as to Mackey. If, then, the plaintiff had not entered ■any judgment the action would have remained pending; and the statute would not have been a bar. (Garland v. Chattle, 12 Johns., 430.) And, therefore, we cannot see how, if judgment had not ’been entered, and if the summons had subsequently been served on Mackey more than six years after the draft had become due, Mackey could have set up the statute of limitations. (Evans v. Cleveland, 72 N. Y., 486.)

This may throw some light on the construction to be given to the sections 375 et seq. In this present case judgment had been perfected under section 136, subdivision 1. Then a summons was issued under section 375 against Mackey.- He was then authorized under section 379 to deny the judgment; to set up any defense thereto which had arisen subsequently ; and also to make any defense which he might have made to the action if the summons had been served on him at the time when the same was originally commenced, Now, at the time when the action was originally commenced, that is, on August 19, 1858, Mackey could not have made the defense of the statute of limitations. The other-defense, that the money was for the individual benefit of Angelí, is disproved. No defense has arisen subsequently to the judgment. It was shown that the present proceeding was commenced within twenty years thereafter. And the plaintiff was entitled therefore to his judgment. (Gibson v. Van Derzee, 47 How. Pr., 231; Broadway Bank v. Luff, 51 Id., 479; White's Bank v. Ward, 35 Barb., 637.)

The defendant insists that after dissolution the act of one partner cannot bind the other. That is' true, but does not apply. It ■was not any act or promise or acknowledgment of Angelí which bound Mackey. It was the service of a summons on Angelí by ■the plaintiff which stopped the running of the statute of limitations. It it be said that the admission of service by Angelí in the judgment roll was not conclusive on Mackey of the fact of service, that might be admitted. Perhaps Mackey might be allowed to j>rove, as a matter of fact, that the summons was not served on Angelí at the time when it purports to have been. But no such proof was offered. On the contrary, it was proved affirmatively upon the trial that the summons was served on Angelí at the time .named, at least, to the best of the witness’s recollection.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bookes and Follett, JJ.

■Judgment affirmed, with costs.