#### A. Speirs Brown, plaintiff and appellant, *vs.*Frederick G. Richardson, impleaded, &c. defendant and respondent.

1. An action against two defendants, upon a joint and several contract as joint, cannot be made an action upon it as several, unless one of the defendants is stricken from the record as a party, or has a defense personal to himself. A several appeal by one defendant will not divide the action into two.

2. Under the Code, any one or more co-plaintiffs or co-defendants may appeal alone, without notice to any one but the opposite party and the clerk; and such appeal by one will not prevent the other from appealing.

3. Although one of several joint defendants, may waive any defense made by him, he cannot waive that of his co-defendant; the plaintiff -has, therefore, a right to insist that the issues in the action shall be tried as against both together.

4. In case of joint defendants, until one of them is wholly out of the action as a defendant, and all the issues against him are disposed of, any judgment in favor of either party is irregular. Until then he has a right to appear at every trial of the issues.

5. If one of two defendants is entirely out of the action as such, his co-defendant has no right to avail himself of any enforced navment by the former, of *604the amount recovered by. a judgment subsequently reversed, unless the party so paying has done something to give his co-defendant that right and waive restitution.

(Before Robertson, Oh. J., and Garvin and McCunn, JJ.)

Heard February 4, 1865;

decided May 27, 1865.

This was an appeal by the plaintiff from a • judgment rendered at special term in favor of the defendant Richardson, alone, upon a trial of the issues in this action before a judge of this court, without a jury. The action was originally brought upon a joint and several contract made by the two defendants, Richardson and Woods, for the delivery of merchandize *;*answers were put in by both defendants severally, setting up several defenses ; no steps were taken to compel them to unite in their defense; the action was tried formerly upon such issues, and a verdict rendered in favor of the plaintiff, against both defendants jointly,. and judgment was entered in favor of the plaintiff against them both for the amount recovered, and costs. The defendant Richardson appealed alone from such judgment to the general term of this court, by which, the same was affirmed, and he again appealed alone from such judgment of affirmance to the Court of Appeals, which court reversed the same and the original judgment, and sent the case back for a new trial. Ho steps were ever taken to compel the defendant Woods to join in such appeal-or be precluded from any other ; or to sever therefrom ; but after the first appeal by Richardson to the general term of this court, execution was issued by the plaintiff against the defendant Woods ; an application was made by the latter to stay proceedings on such execution to this court, which denied the motion; and the execution being returned unsatisfied, supplementary proceedings thereon were taken by the plaintiff against Mr. Woods, and he was compelled to pay the amount of such judgment, including, of course, the costs.

After the judgment of the Court of Appeals, and the payment of such money by the defendant Woods, the defendant • Richardson applied to this court for leave to set up such payment by supplemental answer, which was granted to him *605without any condition as to abandoning his former answer. The defendant Woods did not join in such application, nor did he abandon his original answer ; and the action was never tried as to him.

• This action was tried before a justice, without a jury, as regarded the defendant Richardson alone, who, as well as the plaintiff, waived a jury. In the decision of the court there were no findings of fact in regard to the original cause of action, or the defenses put in by both defendants in their original answers, nor did it appear that any evidence was introduced in relation thereto on the trial, but only as to the payment by the defendant Woods of the former judgment in the action ; that was found, and judgment thereupon rendered in favor of the defendant Richardson alone. There was no evidence in the case of any waiver by Woods of his right of restitution for the enforced payment by him ; nor does it appear by whom the trial was forced on, against the consent of the other.

From such judgment the present appeal was brought.

*F. J.*Fitjiian, for the plaintiff, appellant. '

J". *Ooolc,*for the defendant Richardson, respondent.

Robertson, Ch. J.

This action presents a singular state of proceedings therein. One of two joint defendants has been compelled by the plaintiff to pay a judgment recovered by him therein against both, and the other defendant, after a reversal of such judgment upon his several appeal, seeks to obtain the benefit of such payment by a supplemental answer. It will not be necessary to consider the question, whether one of two joint defendants can waive the right of restitution possessed by the other in consequence of having been compelled to pay a judgment since annulled. The questions involved will be found to relate entirely to the regularity of the proceedings.

The first question is whether the defendant Richardson could bring the cause to trial alone against the plaintiff. It is clear *606that the original judgment, being joint, was reversed against both parties. *(Richards*v. *Walton,*12 *John.*434. *Cruikshank*v. *Gardner,*2 *Hill,*333. *Sheldon*v. *Quinlen,*5 *id.*441. *Harman*v. *Brotherson,*1 *Denio,*537. *Smith*v. *Huestis, Hill & Den. Sup.*236. *Moulton*v. *Norton,*5 *Barb.*286.) The action was upon the contract as joint, and could not be made one upon it as several, unless one of the defendants was stricken from the record as a party, or had a defense personal to himself. The second appeal of Richardson did not divide the action into two. Before the Revised Statutes, summons and severance was necessary in case of an appeal by one of several defendants. *(Bradshaw*v. *Callaghan, 8 John.*558.) A writ of error under those statutes might be quashed when brought by one of several parties, unless the party not joining were absent or incapacitated, or had refused, on being served with a notice, to join therein, (2 *R. S.*592, § 7;) and the party not joining, on such notice, was precluded from bringing any other writ. Under the Code, any one or more co-plaintiffs or co-defendants may appeal alone, *(Mattison*v. *Jones,*9 *How. Pr.*152*; Code,*§ 323,) and no notice is required by it to any one but the opposite party and the clerk. *(Code,*§ 327.) In this case no advantage was taken of the non-joinder, nor was the defendant Woods precluded from appealing, by the appeal taken by his co-defendant.

The cause therefore remaining to be tried upon the original issues, and the plaintiff being liable to restitution to the defendant Woods, the case was to be tried as if no payment had been made, unless such payment by Woods was adopted by the defendants as a payment of the debt, and the right of restitution waived. The defendant Richardson alone moved for leave to set up by supplemental answer such *payment;*and, as I have before stated, it is not necessary now to decide whether he alone could waive restitution for the enforced payment by Woods ; the only question being on the regularity of the judgment appealed from. It is plain that if Richardson could not waive the right of restitution of Woods, the plaintiff may be obliged to repay the latter what has been erroneously. *607forced from him and yet recover nothing in this action against either of the parties, since there can be but one trial in it, and one judgment.

The supplemental answer of the defendant Richardson, and leave granted to him to put it in, probably did not destroy his former answer. The use of the term “ *supplemental,”*in the Code, (§ 177,) shows that it was intended to leave the previous pleading to remain ; the term is borrowed from equity practice, which is more, liberal, and therefore the corresponding allowance of the prior pleading to remain, may also be supposed to be adopted with it, *(Slauson*v. *Englehart,*34 *Barb.*198.) A plea *puis darrein continuance*was more rigorous, and was the only plea in the case, under the early rigid rule of the common law, that there could be but one plea, issue or defense in a cause ; which was never changed as to such pleas. The court may compel a party applying for leave to file a supplemental pleading, to elect to substitute it in place of the previous one, but unless it does so, both remain. *(Bate*v. *Fellowes,*4 *Bosw.*638.)

"But although Richardson might waive his own original defense, he could not waive that of his co-defendant; and the plaintiff was entitled to insist that the action should be tried against both, or neither. There is no evidence that Woods is out of the action as a defendant, and until he is, and the issues against him are disposed of, any judgment in favor of either party is irregular. Until the defendant Woods is either out of the action or disposed of by the judgment, he has a right to appear at every trial of the issues. If he is out of the action, clearly the defendant Richardson has no right to avail himself of the enforced payment by him of the judgment, unless he has done something to give him that right and waive restitution, which does not appear by the record in this case.

I am of opinion that the trial was a mi's-trial or incomplete, and the judgment should be reversed for irregularity, and a new trial had between the plaintiff and both defendants ; unless one of the latter is struck out as a defendant by leave of the court; and that no costs should be given on the apppeal.