The complaint is for damages from breach of a written contract, alleging a joint liability of numerous defendants, among whom are Cramer, Aikens & Cramer, to whose answer the plaintiff demurs. They admit the contract, aver it to be several, not joint, pleading counter-claims existing in their favor against the plaintiff. The demurrer to this answer rests upon the ground that averment of joint liability precludes individual counter-claims. This position would have been well taken under the former common-law rule, where, in an action upon a claimed joint liability of the defendants, the recovery must have' been against all or none. The Code of Procedure now provides that judgment may be given for or against one or more defendants, the ultimate rights of parties on the same side, as between themselves may be determined, and a defendant be granted any affirmative relief to which he is entitled (Code Civ. Pro., sec. 1204). The former rule has thus been radically changed. Should it appear on the trial of this action that the defendants Cramer, Aikens & Cramer alone were liable, the plaintiff would be entitled to" a judgment against them, while the complaint would be dismissed as to the other defendants. These defendants in them answer deny joint liability with others, averring it to be several, if any exists. They are entitled to a trial of this issue, and if successful should be allowed, to urge their counter-claims (McIntosh agt. Ensign, 28 N. Y. R., 169). The authorities referred to by plaintiff’s counsel are those of cases where the actions were founded upon liability conceded to be joint, or with no issue made upon that subject. Such are Perry agt. Chester (53 N. Y. R., 240), and the part quoted of the opinion in Taylor agt. Root (4 Keyes, 335).
Judgment for the defendants on demurrer, with costs.