Sternberger v. Bernheimer

The action was upon a joint liability on contract. One defendant was *326not served and did not appear. The trial proceeded against the other two defendants. The verdict was against one of these and in favor of the other. Judgment was entered against the former individually, who is the appellant here. On the appeal he claims that the judgment should have been entered against him and the defendant not served, jointly. The duty of entering judgment upon a general verdict, is upon the clerk. § 1189 Code Civil Procedure. A mistake by him is to be remedied by motion to the court and then, if the motion be denied, by appeal from the order made. The remedy is not, by an appeal from the judgment. Wright v. Nostrand, 94 N. Y. 41, and the cases there cited.

Upon the trial the defendants asked for a dismissal of the complaint, on the ground that the evidence did not show any joint venture or joint liability. The learned counsel for appellant supposes, that the only testimony that would tend to show a joint interest or contract, was the use by witnesses of the word “ pool,” and he urges that the word “ pool ” is unknown to the law, and was not at all explained on the trial. This does not do justice to the evidence. The jury could know what was intended by the parties, because the testimony showed what was done, in the “ pool ” under the joint order given by the parties, and the recognition by the appellant that the plaintiffs had acted properly. I think also, that so many decisions have been made concerning pools that resort to the cases might be made properly for a definition of the word. It is unnecessary to refer to them, because the acts and declarations of the parties showed what they meant when the word was used.

The condition of the testimony would not justify a setting aside of the verdict as against the weight of evidence.

The judgment and order appealed from should be affirmed with costs.

Ingraham, J., concurred.