#### Pauline Heckemann, Pl’ff, *v.*John B. Young, Impl’d, Def't.

*(Supreme Court, General Term, First Department,*

*Filed January 10, 1890.)*

*1.*Judgment—Joint debtors—Merger.

In an action against this defendant and one A. hath defendants appeared by separate attorneys. Subsequently A. withdrew his answer and consented to the entry of judgment against him. This defendant being in default judgment was entered against both. Thereafter the judgment was vacated as to this defendant as irregular, and he answered, setting up the recovery of the judgment against A. in bar. *Held,*that the debt, being a joint one, was merged in the judgment against A.

3. Same—Code Civ. Pro., § 738.

Section 738, Code Civil Procedure, does not apply to the case of joint debtors.

Exceptions ordered, to be heard in the first instance at the general term.

After judgment was entered in this action it was vacated as to the defendant, the court delivering the following opinion:

Barrett, J.—The plaintiff's practice here has been irregular iind cannot be commended.

The defendant, in case there had been a live plaintiff on the record, would have been bound to answer the amended complaint as the latter alleged a different sum of money to be due from the sum specified in the original complaint. He might have denied under oath owing the larger sum but be unable to deny owing the smaller sum. But this error did not justify the plaintiff’s subsequent course. She proceeded in the cause without regard to the omission to answer the amended complaint, and while there may have been no technical waiver, there certainly was enough to render the entry of judgment without notice both irregular and improper. But further, the plaintiff subsequently found it necessary to amend herself and that on notice to this defendant. Having brought her suit in the name of a deceased person, she was given leave to amend by inserting her own name as plaintiff. Clearly she should have served an amended complaint, and the defendant should have had the legal time to admit or deny her allegations as to his indebtedness to her. Instead of that she proceeded to enter judgment on the old default claimed as between the deceased person and the defendant, disregarding all that occurred and giving no notice as required by law.

The judgment must be vacated, with costs, with leave to plaint*56iff to serve her complaint, and with leave to defendant to answer it (when served) in twenty days.

Defendant answered setting up the recovery against Adams in bar and the court dismissed the complaint, directing plaintiff’s exceptions to be heard at general term.

On the former hearing in this court the exceptions were sustained and a new trial granted. 22 N. Y. State Rep., 600. But a reargument was thereafter granted, 25 N. Y, State Rep., 1033, and on-such reargument the following opinion was delivered.

*A. E. Woodruff,*for def’t; *G. R. Hawes,*for pl’ff.

Brady, J.

This action was brought to recover the sum of $5,892.28 with interest from May 1, 1886, due from the defendants as copartners. Both of the defendants appeared but by separate, attorneys the complaint having been amended in the mean? time. The defendant Adams on the 19th of January, 1887, withdrew his answer and consented to the entry of judgment by default. The defendant Young already being in default for his failure to answer, judgment was entered against both defendants on the 20th of January, 1887. Subsequently and on the 2d May, 1887, an order was made vacating the judgment as to Young and giving him twenty days to answer, and it would appear from the language of the order that there was some irregularity in the entry of the judgment inasmuch as the order directs that the judgment be vacated with ten dollars costs to the defendant Young which would not be the case where the motion to vacate was predicate of an appeal by the defendant to the favor of the court.

The defendant Young then set up by way of answer that a judgment had been entered in this action against the defendant Adams, and that, thereupon, the debt which the action was brought to recover against him and Adams, as joint debtors, became merged in that judgment and was a bar to any further proceedings.

The question presented is whether the answer thus described is as claimed a bar to this action, the learned counsel having so contended upon his motion to dismiss the complaint when the plaintiff rested.

The complaint was dismissed, the learned judge entertaining this view but directing the plaintiff’s exceptions to be heard in the first instance at the general term.

In order to overcome the effect of the answer interposed as a bar to any further proceedings, § 738 of the Code has been invoked by the plaintiff, and the opinion of Chief Justice McAdam in *Kantrowitz*v. *Kulla,*13 Civ. Pro., 74; 11 N. Y. State Rep., 284, is relied upon. The learned chief justice regards the section just mentioned as a substitute for the former cognovit by which a defendant who had no defense gave to the plaintiff a written confession and then proceeds to express his views to the effect that there is no cogent reason why the new rule introduced by § 1278 as to confessions by one of several joint debtors should be limited in its application to confessions technically so called, and declared-that § 1278 applied to the case then m hand and by force of its provi* *57sions judgments against one joint debtor upon Ms offer of judgment did not merge the debt or bar the creditor against the other debtor not included in the offer of judgment.

The learned justice seems to have been misled by his interpretation of § 738. That provision is expressly limited to two or more defendants *when the action can he severed.*It does not, therefore, contemplate joint debtors. If there are two or more defendants, and the action can be severed, an offer may be made, etc.

Beside that, when a confession of judgment is made, it must be made under the forms prescribed by the statute, and it is a proceeding wholly separate and entirely different from an offer made under the provisions of § 738.

Section 1278, which it was sought to combine with § 738, provides when one or more joint debtors may confess a judgment for a joint debt, where all do not unite in the confession, the judgment must be entered and enforced against those who confessed it, and it is not a bar to an action against all the joint debtors upon the same demand. But the confession must conform to the requirements of § 1274, namely, a written statement signed by the defendant, verified, stating the facts out of which the debt arose, and that the same is justly due, or to become due, and if given for the purpose of securing the plaintiff against a contingent liability, it must concisely state the facts constituting the liability.

We have, therefore, presented, as bearing upon the question suggested, the fact that the judgment entered against the defendant, Young, was improperly entered and vacated and time given to answer, an offer of judgment provided for by § 738, which does not relate to joint debtors, and a so-called confession which is invalid for the reason that it does not comply with the statute governing such acts.

The consequence is that the plaintiff took a judgment against one of two joint debtors and the debt was merged in the judgment. His error was in entering the judgment until he had the-right to do so against the other defendant, when he might have-used the offer under § 738 in conjunction with a default or a verdict or the report of the referee as to the other defendant. He did not do so, and the consequence is, on well established authority, that the judgment merged the claim.

In *Candee*v. Smith, 93 N. Y., 352, it was distinctly held that when the holder of a joint promissory note prior to the Code, § 12/8, took judgment by confession for the whole amount against one of the makers, the liability of the other makers was discharged by the judgment, the note as to the others having been merged therein. In that case the court recognized the rule stated as to joint debtors and said that the current of authority had been for a long course of years uniform and unbroken.

When this case was formerly considered it was supposed that the application to open the judgment as to Young was addressed to the merciful consideration of the court, resting upon no right therefor, and that it was ungracious after the favor had been ex*58tended to the defendant Young that he should set up as a defense the existence of the judgment. But a closer examination of the record shows this point to be erroneous, and that the vacation of the judgment and the leave to answer left the rights of the defendant Young wholly intact.

For these reasons the exceptions should be overruled and judgment ordered for the defendant, with costs.

Van Brunt, P. J., and Daniels, J., concur.