When the judgment was recovered against Osborne alone the creditor elected to treat him as the several debtor. Osborne made no defense. The judgment entered against, him upon his joint note was valid as to him, though it may have been irregular and might have been set aside for such irregularity if a motion had been promptly made. (Orleans Co. National Bank v. Spencer, 19 Hun, 569; Waggoner v. Walrath, 24 id., 443; affirmed, 92 N. Y., 639.) Entry of the judgment severed the joint liability of the makers of the note and the judgment debtor became liable alone upon the judgment. (Robertson v. Smith, 18 Johns., 481.) As to the creditor the severance was perfect, and by his consent, and the debtor acquiesced in the same for nearly a year. (Suydam v. Barber, 18 N. Y., 468.) The merger took place by operation of law at the instance, and by the act of the creditor, and the judgment would have been a bar to an action against the other joint maker of the note. (Suydam v. Barber, supra, 470; Peters v. Sanford, 1 Denio, 224; Olmstead v. Webster, 4 Seld., 413; Candee v. Smith, Exr., 18 Weekly Dig., 1.) As the judgment was-prior to the Code of Civil Procedure, section 1278 does not apply. The creditor after taking such a judgment could not prosecute the other joint debtor. Defendant, by the purchase of the judgment recovered by Wilson, became the owner of a valid claim or debt against Osborne, to which he had for nearly a year in his lifetime omitted to make any defense or to in any manner'question. Plaintiffs here ask to have the doctrine of Risley v. Brown (67 N. Y., 160); Hauck v. Craighead (Id., 433); United States v. Price (9 How. [H. S.], 83), applied to this case.
In all of those cases the liability of the surety was joint at the time of his death, and it was held his estate was discharged. Here the liability was severed, it was the deceased’s sole liability that was established by the judgment, and his promise to pay the judgment which the law implies, was a several promise. In Johnson v. Harney (84 N. Y., 366), the court expressed its indisposition to extend the'rule beyond the cases quoted, and held that the death of a surety did not relieve his estate from a liability to contribute to his co-surety.
To hold that Osborne’s death, after a separate judgment against *392him, discharged his liability, would be to advance one step beyond any case to which our, attention has been directed. (Richardson v. Draper, 87 N. Y., 346.) Of course, as this arose before the Code of Civil Procedure, section 758 has no application to the question before us.
We think the referee erred in holding as a matter of law that the plaintiffs were entitled to have the judgment held by defendant against their intestate “ discharged and the lien and obligation of said judgment cancelled.”
We must reverse.
Barker and Dwight, JJ., concurred.Judgment reversed and a new trial ordered before another referee, with costs to abide the event.