McChain v. Duffy. friend of Duffy, and at his request, purchased and took an assignment of the judgment from the plaintiffs. The application for this assignment to Anderton was made by Duffy, and $100 of the money given for the judgment, was paid by a check of one Lawson Jones, drawn payable to Duffy's order. The remainder was paid by Anderton's own check for $93. Anderton swears that he purchased the judgment on his own account, and that he merely borrowed Lawson Jones's check from Duffy, and that he afterwards took it up, and returned it to Duffy. On the 2d of June, Duffy and Anderton went together to Richmond county, filed a transcript of the judgment with the clerk there, delivered a new execution to the sheriff of that county, and directed him to levy on McKeon's property without delay, which he accordingly did. The exact date of this second levy does not appear, nor is it important. On the 3d June, the sheriff of New York discharged the keeper, whom he had employed, from the custody of Duffy's property. On the 4th, Duffy paid the sheriff of New York, $14.42, for fees of the levy made on his goods, and their safe keeping. On the 5th, a written consent was obtained from the attorneys for plaintiff, directed to the sheriff of New York, that, on payment of all fees upon the execution, the same might be countermanded; and, on the same day, a countermand of such execution, signed by Anderton, assignee of the judgment, was directed to the sheriff of New York; and, on the 9th, the execution, endorsed "countermanded," (without date) was returned and filed in the clerk's office. The defendant, McKeon, now applies for an order, that the execution, which was issued to the sheriff of New York, be returned "satisfied," and that all proceedings on the judgment, and on any execution issued to the sheriff of Richmond county, be stayed, or for such other relief as he may be entitled to. It is clear that Anderton, even regarding him as the bonâ fide assignee of this judgment, stands, in regard to the questions now raised, in precisely the same position that the plaintiffs would have stood in, if no such assignment had been made. He took the judgment, subject to whatever the legal effect of the exe McChain v. Duffy. cution and levy on Duffy's goods may have been; and whether the countermand of that execution, and the waiver of that levy, were his acts, or the acts of the plaintiffs, is wholly immaterial. It will simplify the consideration of this point, therefore, to throw the assignment out of view, and regard this transaction as if the plaintiffs themselves had been the sole actors in it. The question, then, would be simply this-Can a judgment creditor of two joint debtors, having already issued an execution, and levied upon sufficient property of one of the debtors, countermand and abandon that levy, for the express purpose of levying for the whole debt, under a second execution, upon the individual property of the other debtor ? It is perfectly well settled in this state, that a levy on sufficient personal property to pay the debt, does not always satisfy the judgment (Green v. Burke, 23 Wend. 490; Ostrander v. Walter, 2 Hill, 329; The People v. Hopson, 1 Denio, 574). In the latter case, Judge BRONSON emphatically says, "If the broad ground has not yet been taken, it is time it should be asserted, that a mere levy upon sufficient personal property, without anything more, never amounts to a satisfaction of the judgment;" and he reiterates this proposition in these words: "without something more than a mere levy, the judgment is not extinguished." This general proposition plainly admits, however, that a levy on sufficient property may, under certain circumstances, be a satisfaction of the judgment; and in the case of Green v. Burke, above referred to, where Justice CowEN gave the subject a very full and elaborate discussion, while the same general proposition was decided, that a levy under an execution against sufficient property, was not, per se, a satisfaction of the judgment, it was thus qualified: "that if the levy fail to produce satisfaction in fact, without any fault of the plaintiff, he may proceed to obtain execution of the judgment." Now, as a corollary from this, it would seem to follow, that, if it was the fault of the plaintiff, that the levy did not produce satisfaction in fact, he may not proceed otherwise to obtain such satisfaction. We must assume that the levy in this case, made by the sheriff of New York, would not have failed to satisfy the execution and judgment, if that sheriff had been allowed to Quin v. Tilton. proceed, and sell under it. That result was defeated by the plaintiffs' own act, and it was their fault, therefore, that the levy failed to produce satisfaction. This brings the case clearly within the principle of that decision, and the principle itself is so obviously founded in justice, that its soundness can hardly be questioned. But this application rests upon stronger grounds than the mere interference of the plaintiffs, or of Anderton, their assignee, to prevent the first levy from being effectual. The presumption is strong, upon the facts, that, if Duffy was not the real purchaser of the judgment, it was, at all events, purchased at his suggestion and request, for the express purpose of screening him from the payment of any part of it, and of enforcing it exclusively against his co-defendant. No court, exercising equitable powers, should permit such an attempt to be successful. The primary equity of the case, while the partnership accounts between the defendants remain unsettled, is, that each should pay one-half of this judgment; but as the case is not now before the court in a shape for such an adjustment, the relief, on this motion, must be by an order, that the execution issued to the sheriff of this county be returned satisfied, as of the day when it was countermanded, and that all subsequent proceedings on the judgment be set aside. The plaintiffs have been paid, and the defendant, Duffy, will, no doubt, save Mr. Anderton harmless, from the loss of any money which he may have paid or advanced for the purchase of the judgment. No costs are allowed to either party on this motion. This decision was affirmed at General Term. QUIN V. TILTON. When a complaint is not properly verified, the verification is a nullity; but the error does not affect the regularity of a subsequent judgment. It appearing that an order, extending the time to answer, together with a copy of the affidavit upon which it was founded, and which stated the name of the Quin v. Tilton. defendant's attorneys, and his absence from the city, had been served upon the plaintiff's attorney, Held, that the service thus made, was equivalent to a notice of appearance. Held, that as the damages had been assessed without notice to the defendant, the judgment entered thereon was irregular. (At Chambers, June 22, 1853.) DUER, J.-The defendant moves to set aside the judgment as irregular, upon two grounds: 1. That the complaint is verified by an affidavit which, although it purports to be made by the plaintiff himself, is sworn to by his attorney; and, 2. That no notice of the assessment of damages by the clerk, was served upon the defendant, or his attorney. The first objection may be at once dismissed. The defect in the verification rendered it a nullity, but had no effect on the validity of the judgment. It merely relieved the defendant from the necessity of answering under oath. The second objection, however, I think has not been answered. It is proved, and is not denied, that the defendant obtained an order extending the time to answer, founded upon an affidavit, stating the name of the attorney whom he had employed, and his absence from the city, and that a copy of the order, and of the affidavit, were duly served upon the plaintiff's attorney. By the service thus made, the plaintiff was informed that the action was meant to be defended, and that the defendant had employed an attorney for that purpose; and, I cannot doubt, that the information so given, was equivalent to a formal notice of appearance in the action. The defendant was, therefore, entitled, under § 246, sub. 1, of the Code, to four days' notice of the assessment by the clerk, of the amount claimed to be due, and as no such notice was given, either to the defendant or his attorney, the assessment, and the judgment founded upon it, were irregular, and the motion for setting them aside must be granted. There is another objection to the regularity of the assessment, to which, without meaning to decide it, I shall briefly advert. It appears from the complaint, that the action is founded upon a promissory note, payable, not absolutely, but upon a condition, namely, the sale, by the defendant, of certain property then in his hands. It may be doubted, whether such a note is Higgins v. Rockwell. an instrument for the payment of money only, within the meaning of § 246, and, consequently, whether the clerk, when he assessed the amount due, ought not to have required proof that the contingency, upon which the defendant's liability depended, had in fact occurred. Judgment set aside, with costs. HIGGINS and another v. P. FREEMAN, and J. ROCKWELL, Administrator of C. P. Freeman. In an action to recover a debt contracted by partners, a surviving partner and the personal representative of a deceased partner, cannot be united as defendants. The surviving partner is alone liable at law, and it is only when the remedies against him are exhausted that relief may be had in equity against the representatives of the deceased partner. But as the objection to such a joint action appears upon the face of the complaint, it cannot be taken in an answer, but must be raised by a demurrer. It is not waived, however, by the omission to demur, but as the complaint shows no cause of action against the representative of the deceased partner, it may be taken advantage of upon the trial under § 148 of the Code. A defendant against whom a judgment is prayed by the complaint, although no summons has been served on him, has a right to appear and answer under § 139 of the Code. In an action upon a promissory note, an answer, which fails to contradict the allegations in the complaint, showing the possession and property of the plain tiffs, but merely denies their right to prosecute as owners, is plainly frivolous (Special Term. May, 1853.) THE nature and grounds of the motion in this case are fully stated in the opinion of the judge. Dillon and O'Gorman, for plaintiffs. C. M. Tracy, for defendants. BOSWORTH, J.-The complaint alleges that Phineas & |