This action was by plaintiffs as owners of three-eighths of the brig Crimea, to recover their portion of the freight of the vessel, on a certain voyage. The defendants were agents of the vessel and had collected the freight. The defense was a set-off, on account of advances *Page 690 made for the vessel some two years previous to the collection of the freight in question.
On the trial before Judge PIERREPONT, in the New York Superior Court, it was admitted that there was no dispute about the facts, and the judge ordered a judgment for the plaintiff, and which was afterwards affirmed at the General Term. From the connected facts it appears that the defendants had been paid, by the firm of Arnold Co., the advances which they made some two years before. The draft drawn by defendants for the amount due them, on Arnold Co., who were then part owners and ship's husbands, were paid; that Arnold Co. became afterwards indebted to the defendants could not affect the original payment.
The only serious question now raised is as to the right of these plaintiffs, as part owners, to maintain this action without including the other part owners or parties. This question is settled by the Code, § 144. The defendants should have demurred to the complaint.
Even if this action could not be maintained without joining the other part owners, the defendants should have demurred. The plaintiffs set out that they were owners of only three-eighths, and claimed to recover only three-eighths of the freight received by the defendants. The defect of parties, if it existed, appeared on the face of the complaint. The point was ruled in Zabriskie v. Smith (3 Kern., 322), where it appeared by the complaint that at the time of the false representations made, and for which the plaintiff received damages, one Gray was a member of the firm, though not made a party to the action. It was held the defendant should have demurred.
It seems very clear that this judgment should be affirmed.
Judgment affirmed. *Page 691