Howe v. Spalding

In respect to the adjustment of the rights of codefendants in an action as between themselves, it was the practice in courts of equity, independently of statutory provisions, to make a decree between codefendants according to the justice and equity of the case, founded upon the pleadings and proofs between the complainant and such defendants. It was also held competent for the court to make a decree between codefendants for contribution or a decree over founded upon facts stated in the bill, and clearly established on the trial, upon the issues as framed. Jones v. Grant, 10 Paige, 350. Our statute (1878 G. S. ch. 66, § 264) is declaratory of this practice. Lansing v. Hudsall, 26 Hun, 621; Kay v. Whittaker, 44 N. Y. 565.

Beyond the rule stated the court could not go, unless issues were framed or settled between the defendants by consent or order of the court, for the defendants would not be bound by answers of which *159they had no notice, which did not directly relate to facts stated in the bill, nor would they be bound to set up in their answers matters not responsive to the bill. Laws 1887, ch. 88, has dispensed with the necessity of an adjustment of the title between codefendants in a partition suit, where the plaintiff in such suit has no interest or ■concern in the dispute between them in respect to the title to an undivided share. The plaintiff may nevertheless have judgment in partition allotting him the share he is entitled to, and the court “shall cause the portion of such property in dispute to be allotted to the defendants claiming such undivided share without determining their respective rights thereto.” That is to say, the plaintiff is not to be prevented from having his share allotted to him in severalty, ■or delayed by a dispute or litigation between defendants in which he has no concern. This was the form of the judgment ordered in plaintiff’s favor in this case, which allotted to the defendants Pugsley and Hulett the share in dispute, leaving the controversy undetermined and subject to future litigation between them. ' ■

The practice was strictly correct, as required by the statute. If the controversy between the defendants could be disposed of at all in the same action, — which we do not decide, — it would be on a separate hearing, after issues framed or pleadings served between them by consent, or on motion under the direction of the court.

Judgment affirmed.