Mullin, P. J.
The bond is, in form, payable to the obligees jointly, but the interest is several, and hence one may sue alone. 1 Chit, on PI. 11.
The promise to pay plaintiff her proportion may not have been founded on a new consideration so as to enable her to sue and recover upon it instead of the bond, yet it may be taken in consideration in determining whether plaintiff’s interest is jointly with the other heirs or separately to herself.
Upon the case as it appears before us, I think the plaintiff was entitled to sue alone. Van Wait v. Price, 14 Abb. 4, note; Homer v. Whitman, 15 Mass. 132.
If, however, we are wrong in this view of the case, we are of opinion that the defect of parties, if any, could not be taken advantage of by answer, but must be taken advantage of by demurrer.
Section 144 provides that defect of-parties may be taken advantage of by demurrer. When the defect does not appear on the face of the complaint, it may be taken advantage of by answer. § 147.
The complaint alleges that there were eight heirs, to whom, by the bond, the money was payable. The language is: “ There being eight heirs, and only eight heirs, each of whom is entitled,” etc.
The complaint speaks in the present tense, and refers to the time of writing it. It is equivalent to an allegation that there are seven other persons to whom this bond is payable, and they are not joined and they are living. It was said, in De Puy v. Strong, 37 N. Y. 371, that it is only when evidence is necessary to make the defect apparent that an answer setting up the defect of parties is permitted. In that case, the plaintiffs alleged in their complaint that they owned portions of the land sought to be recovered that were less than the whole. Whether they gave the names of the other owners, or alleged they were living, is not stated, as it was held to be a case in which the defect should be taken advantage of by demurrer.
All that it is said the complaint contained is, that there were other owners of interest in the land besides the plaintiff; who they were, and whether they were living, was not probably told, as it was held the defect could be, and should have been, taken by demurrer.
I think the averment in this complaint is equivalent to alleging that the persons not joined as plaintiffs were living.
The judgment should be affirmed.
On the facts alleged and proved on the trial, the plaintiff was entitled to costs, and although it would have been more in conformity to the established practice, to have required the plaintiff to move for costs, yet the judgment should not be set aside when it appears that the right to costs has been clearly established. Had the defendant’s counsel showed, in his affidavit for the motion to set aside the judgment, any fact showing that plaintiff’s right to costs was even doubtful, there would have been some excuse for making the motion. But nothing whatever is shown on the subject except the failure to conform to the practice. This would not justify the court in setting it aside, nor this court for reversing the order because it was not set aside.
The judgment and order are affirmed with costs of the appeal, to be paid by the administrator personally.