Carman v. Plass. If lands belonging either to a resident or a non-resident could be assessed to a third person having no connection with the premises, and if such an assessment could be made the foundation of a sale and conveyance of the lands by the Comptroller, great inconvenience and injustice might result. The true owner would be misled. He would have no notice of the assessment or of the proceedings upon it, and it would require extraordinary vigilance to discover and trace out such proceedings. The law protects the owners of property from being placed in such a position, by requiring that, when they are to be divested of their title to such property by any statutory proceeding, the directions of the statute must be strictly pursued. (Sharp v. Spier, 4 Hill, 76; Sharp v. Johnson, id., 92.) Upon each of the grounds here suggested, the sale and conveyance of the premises in question by the Comptroller was unauthorized and void; and as the plaintiffs proved upon the trial a valid title, which appears to be wholly unimpaired except by the Comptroller's sale, the judgment of the Superior Court of Buffalo should be affirmed. All the judges concurring, Judgment affirmed. CARMAN v. PLASS et al. A joint action lies under section 120 of the Code against a lessor and one who is a party to the lease, and therein guarantees the performance of the lessor's covenants. APPEAL from the Supreme Court. The action was comenced in the City Court of Brooklyn, where the plaintiff complained against the defendant, Plass, as the lessee for years of certain premises, claiming to recover $116.66, being arrears of rent due and payable March 1, 1859. The lease was aver Carman v. Plass. red to be by indenture between the plaintiff, of the first part, the defendant Plass, of the second part, and the defendant Mix, of the third part, executed under the respective hands and seals of the parties, whereby Plass covenanted to pay the rent required; and it was alleged that the defendant Mix, by the same indenture, did, "in consideration of the premises, and of the sum of one dollar, guarantee unto the plaintiff the payment of the aforesaid rent and the faithful performance of the covenants in the said lease contained." The complaint further set forth that Plass had made default in the payment of rent, and that the plaintiff had notified Mix thereof, and that both defendants had failed to comply, &c. There was a general demand of judgment against both defendants. The defendants demurred, on the ground that no cause of action against the defendants jointly was set forth in the complaint. The City Court gave judgment in favor of the defendants; but it was reversed on appeal at a general term of the Supreme Court, and judgment was rendered in favor of the plaintiff. The defendants appealed to this court. Henry R. Cummings, for the appellants. DENIO, J. This case comes precisely within the language of section 120 of the Code of Procedure, which provides that persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all, or any of them, be included in the same action, at the option of the plaintiff." I see no reason to doubt that it is likewise within the meaning and intention of the enactment. It relates expressly to several, and not to joint liabili ties. The latter did not require the aid of a special provision; for a plurality of joint contractors always could be, and generally were required to be, sued together; and provision was made in the act concerning joint debtors, for omitting to serve Carman. Plass. process on all, if the creditor should so elect. But, though this were otherwise, the provision in question relates, in terms, to cases where a plurality of persons contract several obligations in the same instrument. That was the case here. It may be said that the cause of action is not, in this case, precisely the same against both the defendants. The lessee engaged to pay the rent unconditionally, and the surety was under no obligation until the principal had made default. But, after such default, each of them was liable for the same precise amount absolutely. They were, therefore, within the language which speaks of persons severally liable upon the same instrument. If this were otherwise doubtful, the reference to suits upon bills of exchange and promissory notes makes it entirely certain that the present case was one of those in the contemplation of the authors of the section. The parties to such paper are included in the provision. The indorsee of a bill or note, and the drawer of an accepted bill, are only liable contingently, and after being charged upon a default of the maker or acceptor. They were included in the scope of the enact ment, because, though, in a general sense, parties to the paper on which their names are placed, they are not parties to the obligation, or instrument, in the same strict sense as the surety in the case under consideration. No doubt, a pretty radical innovation upon the common-law system of pleading was made when, by the act of 1832 (p. 489, § 1), the several obligations of parties to a bill or note were allowed to be enforced in a single action. But this had become familiar law when the Code was written, and it seems then to have been considered that the principle might be usefully extended to cases like the present; and the section referred to appears to me to have been framed for that purpose. I am not able to entertain any doubt respecting the correctness of the judgment of the Supreme Court. In the cases from 11 Howard's Practice Reports, 218, and from 10 Barbour, 638, to which we have been referred, the separate undertaking of the surety was contained in a different instrument, and it was held that he could not be joined as a defendant in an action against the principal. It Scott v. The Ocean Bank in the City of New York. was assumed by the court that, in a case like the present, where both parties were bound by the same instrument, the statute would apply. I am in favor of affirming the judgment of the Supreme Court. COMSTOCK, Ch. J., and MASON, J., dissented; all the other judges concurring, Judgment affirmed. SCOTT V. THE OCEAN BANK IN THE CITY OF NEW YORK. The property in notes or bills transmitted to a banker by his customer to be credited the latter, vests in the banker only when he has become absolutely responsible for the amount to the depositor. Such an obligation, previous to the collection of the bill, can only be established by a contract to be expressly proved or inferred from an unequivocal course of dealing. It is not enough to warrant such an inference that the customer was a large depositor of money and bills, and constantly drawing drafts against his remittances, under an arrangement by which he was allowed interest on his average balances; and that after the banker had transferred a bill remitted to him, after acceptance but before payment, failed and suspended business at the place where the remittance was received, the customer continued to draw upon him as before at an office in another State, where the banker did not suspend business. These facts create the relation of debtor and creditor in respect to money received by the banker, but are insufficient to charge him with responsibility for a bill previous to payment, and consequently to vest him or his assignee for a precedent debt, with the property in such bill. APPEAL from the Superior Court of the city of New York. Action by the plaintiff, as the assignee of one Lyell, to recover of the defendant the proceeds of a bill of exchange for $2,000, remitted by Lyell to the Ohio Life Insurance and Trust Company at its office in New York, and by the latter transferred to the defendant, after acceptance, as security for a precedent SMITH.-VOL. IX. 37 Scott v. The Ocean Bank in the City of New York. they were, that they might be made for the bills remitted before collection, as well as the money. No reasons are disclosed in the case from which it can be reasonably inferred, that the company would consent or had any inducements to consent to treat as cash, and make itself debtor for, every bill that might be remitted to it without reference to the standing and responsibility of the parties, which in many cases might be unknown, especially when Lyell himself, as in the case of the bill in question, was not a party to such bill. It is more reasonable to assume that it would at least reserve the right to elect, whether to give credit absolutely or not before the proceeds were realized; and until such election was made, and credit was in fact given therefor, the bill would be held by it as the property of Lyell, and not its own. When, therefore, it appears that the bill in question was retained in the possession of the company after its acceptance, and that no credit had been given for it at the time it was passed to the defendants, and when nothing is disclosed in the whole course of dealings between the parties to show that any bill was ever credited or agreed to be credited in account before its collection, or that Lyell ever drew or was entitled to draw upon the company, or that it was bound to accept drafts otherwise than upon and for funds actually received in cash, it must be considered that the company at the time of the transfer stood in the relation of agents for its collection merely. There is no ground based on those dealings (and no other is claimed), for the conclusion that the ordinary relation of debtor and creditor between the company and Lyell in relation to the bill in question existed, or that it had become as between them the property of the company. Lyell consequently continued to be the owner of it at the time of its transfer, and the defendants never acquired any right to it as against him or the plaintiff who had succeeded in his title. The facts found by the court below, show that they received it, with other securities, to secure a precedent indebtedness of the company to them, and that they neither advanced nor paid any new consideration on receipt of this bill, and they only gave credit for its proceeds after it was paid, in extinguishment of so |