Rosenzweig v. McCaffrey , 59 N.Y.S. 863 ( 1899 )

Freedman, P. J.

The complaint in this action alleges that certain real estate brokers in New York city, named Giles & Griffin, engaged in business as such, made an agreement with the defendant McCaffrey by the terms of which they were to effect an exchange of a house and lot owned by Mrs. McCaffrey with one Ketchum for property owned by him; that such exchange was contracted to be made, and that, by reason of the full and complete performance of the conditions of their agreement with Mrs. McCaffrey, she became indebted to Giles & Griffin in the sum of $1,700. It further recites an assignment of all the right and interest of Griffin to such claim to this plaintiff; the refusal of Giles to unite as a party plaintiff in this action, and that for that reason he was made a party defendant, under the provisions of the Code of Civil Procedure, and it demands a judgment against the defendant McCaffrey alone for the sum of $1,700. The defendant McCaffrey alone appears and files an answer, setting up as a set-off or counterclaim an indebtedness or liability, existing against the plaintiff’s assignor, Griffin, individually, and. to such, set-off or counterclaim the plaintiff interposed a demurrer.

One of the grounds of the demurrer is that the set-off or counterclaim, consisting of an existing indebtedness against the plaintiff’s assignor alone, is not available against defendant’s liability to Giles & Griffin. The demurrer was sustained by the Special Term of the City Court, and the order and judgment thereon affirmed by the General Term of the City Court, from which order and judgment this appeal is taken. The nature and form of a contract generally determines whether the liabilities of the parties are joint, or several, or joint and several. Where a contract is made by two or more persons jointly, and there are no words which indicate a several liability, the contract is a joint one. Applying that rule to the complaint herein, it sets out a contract made by Giles & Griffin jointly, and not severally, or jointly and severally. The cause of action alleged therein and the claim made thereunder against the defendant is a joint one. Had this action been brought by Giles & Griffin against the defendant McCaffrey alone, it would not be contended that an indebtedness of Griffin to her could be available as a set-off. Spofford v. Rowan, 124 N. Y. 113. Tire plaintiff in this action, by virtue of the assignment from Griffin, has succeeded to his rights, and the making of Giles a party defendant enables the court to determine the rights of the respective parties, but does not change the liability, theretofore existing in favor of both jointly, into a separate liability against which a debt owing by one of the joint claimants can be offset.

This point raised by the demurrer being well taken, the other grounds contained therein need not be considered.

Order and judgment appealed from affirmed, with costs to respondent.

MaoLeait and Leventbitt, JJ., concur.

Order and judgment affirmed, with costs to respondent.