General
Palmer against Evertson
2 Cow. 417·New York Supreme Court·1823·NY
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Opinion
Palmer against Evertson.
A plea in anon-joind’er"5 otb®rs as de* fendants, cannot be reeeiv®^ea aJte^ar ea g. the general issue.
On certiorari to a Justice’s Court. The action was assumpsit in the Court below, by Palmer against Evertson. Plea, the general issue; and that the suit should have been brought against the defendant and others, as partners.
. . . , „ On trial, a verdict and judgment were given for the defendant; and one question here was, whether the non-joinder of others could be pleaded after the general issue.
L. Maison, for the plaintiff in error.
N. P. Tallmadge, contra.
[MAJORITY — Curia.]
Curia.
It should have been pleaded in abatement, and consequently came too late after a plea of the general issue. (Per Kenyon, Ch. J. 6 T. R. 770. Laws on Pleading, 108. Cas. Temp. Hardw. 135. 1 Mass. Rep. 358. 1 John. Cas. 101, 2.)
Judgment reversed.