[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 172 It is the rule of the common law recognized and enforced by the courts of this state, except as modified by section 1278 of the Code of Civil Procedure, that a judgment rendered against one of several joint debtors in an action against him alone is a bar to an action against the others. (Candee v. Smith, 93 N.Y. 349;Suydam v. Barber, 18 id. 468.)
Section 1278 of the Code of Civil Procedure provides that in case of a confession of judgment by one or more joint debtors, judgment may be entered and enforced against them, "and it is not a bar to an action against all the joint debtors upon the same demand." That section is not in terms applicable to the situation before us, but it is instructive as indicating a legislative intent to limit in some measure the common-law rule. This court had before it in Harbeck v. Pupin (123 N.Y. 115), a case which was held to be governed by that section. It was objected that the action was not within its provisions, because not brought against "all the joint debtors," but against the personal representatives of one of the joint debtors; also, that it was not "upon the same demand, but upon a demand reduced by payments made in pursuance of a compromise with two of the joint debtors after confession of judgment." It was said that "to adopt a construction so narrow and literal as this would be to practically nullify a remedial statute intended by the legislature to abrogate a harsh and technical rule of the common law that frequently operated to defeat a just claim." Except as modified by the statutory provisions to which we have referred, the common-law rule, obtaining at the time of its enactment, continues in force. But such enactment should be regarded as a caution against *Page 173 any extension of the rule beyond the lines already firmly established by authority.
In Suydam v. Barber (18 N.Y. 470), the court, in assigning a reason for the rule that a judgment against one of several joint debtors obtained in an action against him alone is a bar to an action against the others, said: "It is held to be a bar upon the ground that by the recovery of the judgment the promise or cause of action as to the party sued has been merged and extinguished in the judgment by operation of law at the instance and by the act of the creditor. "Having but one debt, although two or more persons may be jointly liable for it, the creditor has but one cause of action, which he is not permitted to split up into as many different actions as there are joint debtors. Having but one cause of action, if he prosecute that to judgment against less than the whole number of joint debtors, he is deemed to have intended to waive his right to proceed against the others. The idea of election by the creditor is necessarily involved. Being presumed to know the law, the extinguishment of his cause of action by the recovery of a judgment against only a part of his joint debtors is presumed to be intended by him, because the result of his own act.
Now, this plaintiff did not elect to proceed to judgment against Adams alone. Adams Young were parties defendant, and a joint judgment was rendered against them. And the recitals in the judgment indicate that the plaintiff was at the time of its entry entitled to judgment against both defendants. Subsequently, it is true the judgment was vacated as to the defendant Young, and he let in to answer. But this was not on plaintiff's motion. On the contrary, he opposed it. He insisted on the right to retain his judgment against both defendants, and the determination of the court to open the judgment as to one of the defendants, and let him in to contest his liability, cannot be deemed an election by the plaintiff to extinguish the cause of action which the court, by its order, said the defaulting defendant might litigate.
The record does not contain the motion papers, and we are, *Page 174 therefore, in the dark as to the ground upon which the Special Term based its decision vacating the judgment as to Young, and letting him in to contest the cause of action alleged in the complaint. So far as this record discloses, he had no defense at the time when the motion was made. Certainly, the court did not intend that the order granted should create a defense where none existed, nor can such an effect be given to it.
The judgment should be reversed.
All concur.
Judgment reversed.