Granit v. Abramowitz

(dissenting). It is undisputed herein that copies of the summons and complaint in this action were served upon the defendant Abramowitz within the jurisdiction of the court below; but his codefendant, Sherlip, a nonresident, was not served. Were the action against a copartnership, it would- be immaterial whether the attorney, who appeared and answered for both' defendants, was .or was not authorized so to do, because judgment was taken by default, whether with or without appearance of no substantial moment; for *1082personal service on‘each defendant was not essential to give the court ■jurisdiction, provided the liability was a partnership liability. Teller v. Gerry, 30 Misc. Rep. 126, 61 N. Y. Supp. 864. The title of the action, both in summons and complaint, does not indicate an" action against the defendants as a copartnership, and, while it has been held in certain cases “that the title and pleadings may be considered together to ascertain the true nature of the action” (First Nat. Bank v. Shuler, 153 N. Y. 163, 173, 47 N. E. 262, 265, 60 Am. St. Rep. 601), reference to the pleadings discloses no action against a partnership; the statement in the complaint that the defendants “then were and still.are copartners” being no more than description, and closing with a demand for judgment “against the defendants.” See Bennett v. Whitney, 94 N. Y. 302. The action appearing to be one against joint debtors, “service of summons on one authorizes judgment against all, which may be enforced by execution against the joint property, although the other defendants are not served, and do not appear in the action” (Yerkes v. McFadden, 141 N. Y. 136, 138, 36 N. E. 78), and such judgment appears to have been entered herein.

However, under the circumstances herein disclosed and the original application in the alternative to open the default, the order appealed from should be reversed, without costs, and the default should be opened upon terms to be imposed by the court below.

It seems to me that the motion to vacate the judgment was properly denied. While the title of the action does not refer to the defendants as copartners, the complaint contains the allegation usual in an action against a copartnership. The decision- rendered in the action finds as a fact that the defendants were copartners. The articles of copartnership, which are before the court, established beyond all question that the defendants were copartners.

The order appealed from should be affirmed, with $10 costs and disbursements.

GILDERSLEEVE, P. J., concurs.