APPEAL by the defendants, John Fox, Sr., and another, from a judgment of the County Court of Cattaraugus county in favor of the plaintiff, entered in the office of the clerk of said county on the 25th day of June, 1909, reversing a judgment of the Justice's Court in favor of the defendants.
Henry Donnelly, for the appellants.
M. B. Jewell, for the respondent.
The action was commenced in Justice's Court against the defendant, John Fox, Jr., an infant, on a written agreement whereby he subscribed for a scholarship, and was to receive instruction in bookkeeping and business forms of the plaintiff, and was to pay therefor sixty dollars and eighty cents, in monthly installments of three dollars each after the first cash payment which was made, the complaint alleging that there was due and unpaid on said agreement the sum of forty dollars and eighty cents.
There was also set out in the complaint a cause of action against the defendant John Fox, Sr., on a collateral contract, guaranteeing 'the payment of said scholarship in accordance with the terms of said contract' with the son.
Separate answers were interposed, each containing certain denials alleging other defenses, and the answer of the defendant's son contains this averment: 'The defendant further answering the complaint herein alleges that there is a misjoinder of parties defendant herein. That the said defendants cannot be joined in this cause of action as party defendants; that it is improper to join them as such.'
The answer of the codefendant, among other matters, alleges 'that there is a misjoinder of parties defendants.'
At the trial the plaintiff offered in evidence the contract with the independent agreement of guaranty of Fox, Sr., indorsed thereon. Objection was interposed, setting forth among other grounds: 'That part of it purports to be a direct contract with John Fox, Jr., and the other portion on another leaf is a guarantee with John Fox, father, and that this action can't be maintained jointly against these parties. On the ground that it is incompetent and can't be received in the condition the action is now in. That there is a misjoinder of parties defendant. That this alleged paper contains two contracts, one direct with one of the defendants and the other collateral with the other one. That it is not proper.'
The objection was sustained, the justice remarking: 'I don't think it would be competent as against both of the defendants.' The plaintiff then rested and the defendant moved for a nonsuit on the ground that the plaintiff had not made a
case, 'that there is an improper joinder of the defendants. That the action cannot be maintained against both defendants in one action, because one is a contract of guarantee and the other is a principal to a contract, and on the ground that the defendant is an infant under the age of twenty-one years,' and the motion was granted.
We start with the basic proposition that the two several causes of action were improperly united. ( Roehr v. Liebmann,9 A.D. 247; Barton v. Speis, 5 Hun, 60; Brewster v. Silence,8 N.Y. 207; Green v. ...