CHAPTER VI. . Manner of entering judgment. SECTION 274. Judgment may be for or against any of the parties to the action; may grant defendant affirmative relief. Complaint may be dismissed for neglect to prosecute the action. Judgment against married woman. 275. The relief to be awarded to the plaintiff. 276. Rate of damages, where damages are recoverable. 277. Judgment in action for recovery of personal property. 279. Clerk to keep a judgment-book. 280. Judgment to be entered in judgment-book. § 274. (Am'd 1849, 1852, 1862.) Judgment may be for or against any of the parties; may grant defendant affirmative relief. Complaint may be dismissed for neglect to prosecute action. Judgment against married woman. (1.) Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between themselves. (2.) And it may grant to the defendant any affirmative relief to which he may be entitled. (3.) In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. (4.) The court may also dismiss the complaint, with costs in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served. (5.) In an action brought by or against a married woman, judgment may be given against her as well for costs as for damages, or both for such costs and for such damages, in the same manner as against other persons, to be levied and collected of her separate estate and not otherwise. And in any proceeding to en force such judgment, the supreme court shall have jurisdiction, though the amount be less than one hundred dollars. Note to Subdivision 1. a. Judgment against one of several defendants.-The code has modified the common law rule that in an action on an alleged joint contract, the plaintiff must recover against all the defendants or be defeated in the action. -Where the contract sued upon, is in fact joint only, there can, if the nonjoinder be properly insisted upon, be no recovery against one only of the joint contractors, except in cases where the defense is personal to one or more of the other defendants, as infancy, &c. (Fowler v. Kennedy, 2 Abb. 347; Zink v. Attenburg, 18 How. 108; Brown v. Richardson, 4 Rob. 603); where the plaintiff sues some only of the parties jointly liable on contract, and the non-joinder is not set up as a defense either by demurrer or answer, the plaintiff may recover against the parties sued, although it may appear on the trial that others are jointly liable with them (Fowler v. Kennedy, 2 Abb. 347). Where several are made defendants, as upon a joint contract, and it appears on the trial that only a portion of the defendants made the contract, the plaintiff may recover against such of the defendants as in fact are liable (Zink v. Attenburg, 18 How. 108; see also Witherhead v. Allen, 28 Barb. 666; and Sluyter v. Smith, 2 Bosw. 673; Claflin v. Butterly, 2 Abb. 446; 5 Duer, 327; McKenzie v. Farrell, 4 Bosw. 193). Thus, where the action was against the defendants, B. & D., as partners, and it appeared that D., without the knowledge or assent of B. had signed the name of B. and D. to the instrument in suit, and on which it was conceded that B. was not liable, it was held that the plaintiff might have judgment against D. alone (id.) And see Parker v. Jackson, 16 Barb. 33; Harrington v. Higham, 15 Barb. 525; Merrifield v. Cooley, 4 How. 272; Fielden v. Lahens, 6 Abb. N. S. 341; McIntosh v. Ensign, 28 N. Y. 169; see Niles v. Battershall, 27 How. 381; 18 Abb. 161; and Sager v. Nicholls, 1 Daly, 1; and in Brumskill v. James, 11 N. Y. 294, which was an action by Brumskill against two defendants described as William L. James and Eliza Eaglesum, and was for the recovery of the amount of two promissory notes alleged to have been made by the defendants "under and by their copartnership name of Eaglesum & Co." The defendant described as Eliza Eaglesum did not appear or answer. The defendant James by his answer denied that he, jointly with said Eliza, either under the firm name of Eaglesum & Co., or otherwise, made the notes, or that he ever jointly, with her, either under said firm name or otherwise, made the promises in the complaint alleged. On the trial it appeared that the notes were signed by the defendant James with the name of Eaglesum & Co., and that at the date of the notes the defendants carried on business under the firm name of Eaglesum & Co., and that at the time of the making of the notes the defendants were husband and wife, held that plaintiff could recover against the defendant James. b. So in an action against two or more defendants upon a contract made by or in behalf of a firm or association, if one of the defendants makes default and others appear and deny their liability, it is sufficient on the trial for the plaintiff to prove that the contract was made by the firm or association, and that the defendants who appeared are members thereof; and it is not necessary for the plaintiff to prove that the defaulting defendant is also a member (Downing v. Mann, 9 How. 204; 3 E. D. Smith, 36; Pruyn v. Black, 21 N. Y. 300). And whenever a plaintiff establishes a cause of action against one or more of the defendants in an action for a tort or upon contract, and it appears in the latter case that the defendants were not joint contractors or jointly liable, he is entitled to a judgment against those as to whom he estab lishes his cause of action. Thus, in an action on a joint and several bond purporting to have been executed by the defendants, on the trial it appeared that only one of the defendants had signed the bond. The breach of the condition of the bond was proved, and the plaintiff recovered against the defendant who had signed (The People v. Cram, 8 How. 151). And the plaintiff may have judgment against one or more of several defendants whenever upon the facts of the case a cause of action appear against such defendants (Harrington v. Higham, 15 Barb. 525; Bonsteel v. Vanderbilt, 21 id. 26; Marquat v. Marquat, 12 N. Y. 342; and see Benson v. Paine, 17 How. 408; 9 Abb. 28; Witherhead v. Allen, 28 Barb. 661). a. In action of tort, as a several judgment may be rendered against the guilty, and the others acquitted, a misjoinder of defendants is not available in any form (Montford v. Hughes, 3 E. D. Smith, 591). And in an action against husband and wife for an assault, held that plaintiff might recover against the husband only (Wagner v. Bill, 19 Barb. 321). So an action against several defendants to recover the possession of personal property, where a taking of the goods by one of the defendants is fully proved, it is not a ground for a nonsuit generally, as to all the defendants, that no joint taking by them was proved (Woodburn v Chamberlin, 17 Barb. 446; Lomer v. Meeker, 25 N. Y. 361, 364). If nothing appears either in the pleadings or the evidence, to charge a portion of the defendants, they will be entitled to a nonsuit, and the plaintiff may proceed and try the issue between himself and the other defendants (id.) In an action against several partners, on a promissory note, signed with the partnership name, where one of the defendants set up as a defense, that the note was in renewal of a note made by another firm, of which he was not a member, and that the firm name to the note in suit was signed without his authority, and the jury find for such defendant, a verdict may be entered for him and against the other defendants (Parker v. Jackson, 16 Barb. 33). b. In an action against partners to recover money lost in gaining a recov ery against one of the defendants without amendment is regular (Betts v. Hillman, 15 Abb. 184). c. In an action against the maker and indorser of a note, either defendant may have the complaint dismissed as to him on the trial (Lomer v. Meeker, 25 N. Y. 361). d. In an action against three persons as partners, one not being served with summons nor appearing, the partnership being put in issue, on proof of the partnership of the defendants served, held that the plaintiff might have judgment against all of the defendants (Pruyn v. Black, 21 N. Y. 300). e. Where two defendants were sued on a joint liability, and one answered and one failed to answer, on the trial of the issue raised by the answer, the defendant who answered alone appearing, judgment was taken against both defendants, without any proof of no answer having been received from one defendant, held that no such proof was necessary and that the plaintiff was regular (Catlin v. Billings, 13 How. 511). f. One of several defendants in an action for a tort is entitled to a verdict, before the case of his codefendant is submitted to the jury, if the testimony be such that, if he were sued alone, he would be entitled to a nonsuit (Dominick v. Eacker, 3 Barb. 18; McMartin v. Taylor, 2 Barb. 356). This is not a matter of discretion but of right (id.) g. In an action against seven defendants as joint makers of a promissory note the plaintiff on the trial was allowed to strike out the names of two of the, defendants and take judgment against the remaining five. But the plaintiff had to pay the defendants whose names were struck out their costs of defending (Marks v. Bard, 1 Abb. 63). h. This provision is to be construed in connection with § 118 (Wells v. Smith, 7 Abb. 261; and see Ford v. David, 1 Bosw. 570). ¿. Judgment on recovery by plaintiff with costs to the defendant. When on a recovery by the plaintiff in an action for a money demand, the defendant is entitled to costs, the costs should be set off against the plaintiff's recovery, and there should be but one judgment entered and execution awarded for the excess of the one over the other (Johnson v. Farrell, 10 Abb. 384). A separate judgment for defendant's costs in such a case would be irregular (id.). See § 370, post. Note to Subdivision 2. a. Affirmative relief to defendant.—When a defendant claims affirmative relief, legal or equitable, the duty of an actor in bringing the cause to trial devolves upon him. He can only obtain the relief when the cause is brought to a trial upon his own notice or that of the plaintiff (Roy v. Thompson, 8 How. 253). After issue joined, if a defendant seeks judgment for more than a dismissal of the complaint with costs, he must notice the cause for trial (Wilson v. Wheeler, 6 id. 49; see Potter v. Davidson, 8 Abb. 43). Defendant can have affirmative relief as against the plaintiff (Mayor of N. Y. v. Wood, 4 Abb. N. S. 332), but not against a codefendant (Mechanics' Savings Institution v. Roberts, 1 Abb. 382; and see Woodworth v. Bellows, 4 How. 24; Norbury v. Seeley, 4 How. 73; Stephens v. Hall, 2 Rob. 674; see, however, Elliot v. Pell, 1 Paige, 268). b. A judgment must be based upon the pleadings, and affirmative relief cannot be given to the defendant, unless set up by way of counter-claim (Wright v. Delafield, 25 N. Y. 266). Thus where the complaint prayed a specific performance of a contract in regard to the sale of land and an injunction against the defendants prosecuting actions on notes given for the purchase of said lands, the defense in effect was that the defendants were not bound to complete until said notes were paid. The defense was established and held that no other judgment could be rendered than one dismissing the complaint, and a judgment giving defendant affirmative relief was reversed (id.) And see (Garvey v. Jarvis, 54 Barb. 179). c. In an action for divorce for cruel treatment, brought by a wife against her husband, the plaintiff failed to make out a case. The defendant set up by answer and proved facts which, had he been plaintiff, would have entitled him to a divorce a mensa et thora; held, that as defendant, he was entitled to the same relief (McNamara v. McNamara, 9 Abb. 18; 2 Hilton, 547). Note to Subdivision 3. d. Judgment against one defendant leaving the action to proceed against the other.-A party can avail himself of this provision only through the medium of an order of the court; and in a case in which the court might allow judgment to be entered against one defendant and the action to proceed as to the others, it is irregular for a plaintiff, without an order for the purpose, to enter judgment against one defendant and continue the action against the others (Bacon v. Comstock, 11 How. 197; and see Buell V. Gay, 13 How. 31; Brown v. Richardson, 4 Rob. 603). And where a number of defendants are sued on a joint liability, and some defend and one fails to answer, the plaintiff is not entitled to judgment against the defendant not answering until the issue raised by the other defendants has been disposed of (Catlin v. Latson, 4 Abb. 248). e. A several judgment may be entered wherever a several action might have been brought (Parker v. Jackson, 16 Barb. 33; Harrington v. Higham, 15 Barb. 525; Merrifield v. Cooley, 4 How. 272; Crandall v. Beach, 7 How. 271). f. In an action for a tort against two defendants, one defendant died and the plaintiff obtained an order for continuing the action against the survivor and the representatives of the deceased. On the trial the court obliged the plaintiff to elect either to proceed against the survivor or the representatives. The plaintiff having elected the representatives, held that the surviving defendant was entitled to costs (Gardner v. Walker, 22 How. 405). Note to Subdivision 4. g. Dismissal of Complaint for not serving copy.-This provision applies only to the cases of several defendants, it does not apply to the case of a single defendant (Kimberly v. Parker, 34 How. 275; and see Unger v. Forty-second Street R. R. Co. 6 Rob. 545). The statute fixes the time R within which the plaintiff must serve a copy of the complaint after demand; and if he fails to serve the copy in time, it is an unreasonable neglect to proceed in the cause against the defendant who has been served with the summons; and the motion may be to dismiss the complaint, though in point of fact no complaint may have been made. If the motion is granted, the action will be dismissed (Calvin v. Bragden, 5 How. 124; Baker v. Curtiss, 7 ib. 478; and see Luce v. Trempert, 9 How. 212). a. If the copy complaint is not served within twenty days after demand, and is afterward tendered, the defendant is not bound to accept it (Mandeville v. Winne, 5 How. 461), where after service of notice of motion under this section to dismiss the complaint for not serving a copy within twenty days after a demand thereof, a copy was served by leaving it at the office of the defendant's attorney, and he neither refused to receive it, nor did he offer to return it, until after the lapse of fifteen days, when he returned the copy com. plaint with a notice that he disregarded it, on the hearing, the court granted the motion with leave to the plaintiff to serve a copy of the complaint within five days, on payment of costs (id.; see Wirtz v. Norton, 25 Wend. 699; 3 Hill, 476; 1 How. 240; 2 ib. 146; 3 ib. 64). b. A defendant served with the summons "has no right to ask the court to dismiss the complaint, with costs, in favor of the defendants not served" (Travis V. Tobias, 7 How. 90; and see McKenzie v. Hackstaff, 2 E. D. Smith, 75; Robinson v. Frost, 14 Barb. 536). c. A party named as a defendant in the summons, but who has not been served, can voluntarily appear and move to dismiss the complaint if he has some right to protect, which renders such appearance necessary (Waffle v. Vanderheyden, 8 Paige, 45; Georgia Lumber Co. v. Bissell, 9 Paige, 226; Tracy v. Reynolds, 7 How. 327. See ante, p. 143 c). d. A motion for judgment for not serving a copy of the complaint must be made in the district, or a county adjoining the county in which the summons states the complaint will be filed (Johnston v. Bryan, 5 How. 355). e. Dismissing complaint for not proceeding to trial. (See Rules 26, 27.)-Where a defendant notices the cause for trial, and omits an opportunity to move it at the circuit, he cannot afterward move for a dismissal of the complaint for the plaintiff's neglecting to proceed to trial (MeCarthy v. Hancock, 6 How. 28; Miller v. King, 18 Åbb. 244; Fuller v. Sweet, 9 How. 74). f. Either party may give notice of hearing; and where both parties notice the cause, neither can charge delay or default upon the other for not bringing the cause to a hearing (Thompson v. Krider, 8 How. 248; Moeller v. Bailey, 14 id. 359; but see Bowles v. Van Horne, 11 Abb. 84). The fact that a defendant has had the cause reserved, generally does not make it his duty to keep it upon the calendar, and if the plaintiff suffers the case to go off the calendar, the defendant may move to dismiss for want of prosecution (Corbett v. Claflin, 17 Abb. 418). 9. If the plaintiff, in an action of claim and delivery, in which issue has been joined, neglects to bring the cause on for trial, the proper course for the defendant is to notice the cause himself, and bring it on. An order that the complaint be dismissed, unless the plaintiff bring the cause to trial within a specified time, is improper in such a case (Schroeder v. Kohlenback, 6 Abb. 66; Wilson v. Wheeler, 6 How. 49; but see Roy v. Thompson, 8 How. 253; 1 Duer, 636). h. It is no sufficient answer to a motion to dismiss the complaint for want of prosecution, to say that the plaintiff is dead, that no representative can be found to revive the action, but that the attorney hopes to find a representative who is willing to revive the action (Crawford v. Whitehead, 1 Code Rep. N. S. 345); and see, as to death of one of several defendants, Chapman v. Foster, 15 How. 241. i. Where the case is at issue as to some only of the defendants, and the plaintiff does not proceed against the others, the proper course for the de |