Negligence-Trespass-Conversion- Slander, etc. 4 Duer, 431; Nichols v. Michael, 23 N. Y. (9 Smith) 264. Thus both principal and agent may be made defendants in an action for damages for a personal injury caused by the negligence of the agent in the course of his employment, although the act was done in the absence of the principal (Phelps v. Wait, 30 N. Y. [3 Tiff.] 78; Creed v. Hartmann, 29 N. Y. [2 Tiff.] 591; affirming S. C., 8 Bosw. 123); so a joint action may be maintained against both landlord and tenant for joint negligence in the use of the premises leased. Irvin v. Fowler, 5 Rob. 482; S. C., 4 id. 138. Master and servant may also be joined in an action to recover damages for the negligence of the servant (Montfort v. Hughes, 3 E. D. Smith, 591; Suydam v. Moore, 8 Barb. 358); but a distinction must be made between negligence and a willful injury on the part of the servant. Wright v. Wilcox, 19 Wend. 345. So a passenger may bring a joint action against two railroad corporations to recover damages for injuries received by a collision resulting from the concurrent negligence of both companies. Colegrove v. New York & New Haven and New York & Harlem Railroad Companies, 20 N. Y. (6 Smith) 492; affirming 6 Duer, 382. b. Joint trespass. Where two or more persons are liable for one and the same trespass, the party aggrieved has his election to prosecute both in one action, or to sue them separately. Kasson v. People ex rel. Pease, 44 Barb. 347. Thus, a sheriff being liable for the misfeasance of his deputy, both may be joined in an action for a trespass committed by the latter. Waterbury v. Westervelt, 9 N. Y. (5 Seld.) 598; King v. Orser, 4 Duer, 431. c. Conversion. Where a party has obtained possession of goods by fraud and transferred them by assignment to another, both assignor and assignee may be joined in an action for the wrong. See Nichols v. Michael, 23 N. Y. (9 Smith) 264. d. Slander and libel. As a general rule, an action for slander will not lie against two, though an action for composing and publishing a libel may. Forsyth v. Edmiston, 2 Abb. 430; S. C., 5 Duer, 653; Thomas v. Rumsey, 6 Johns. 26. e. Husband and wife. As to the joinder of husband and wife in actions for the tort of the wife, see Married women, ante, 124, 126. Section 4. Persons liable on the same instrument. a. In general. At common law, a joint action could not be maintained against parties upon covenants entered into by them Persons liable on the same instrument. severally; and when the covenant was joint and several, it was necessary to treat the action as joint as to all, or several as to all, or, in other words, to join all the parties to the covenant as defendants in one action, or to bring as many actions upon the covenant as there were parties thereto. It was not allowable to sue a part jointly, and others severally. De Ridder v. Schermerhorn, 10 Barb. 638. But, under the Code, 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. Code, § 120. This provision of the Code does not in any way affect or change the liabilities of the several parties to the instrument. It does not change a several liability into.a joint liability, but, for the convenience of the plaintiff, permits him to sue all parties to the note in a single action. Alfred v. Watkins, 1 Code R. N. S. 343. Thus the contract of the indorser of a note is independent and distinct from that of the maker, and, although the statute gives the right to join them in a single suit, it preserves the relations of the parties and does not make them joint debtors. See Farmers' Bank of Amsterdam v. Blair, 44 Barb. 641; Kelsey v. Bradbury, 21 id. 531 ; affirming S. C., 12 N. Y. Leg. Obs. 222. This provision of the Code is not confined to the original parties to the same instrument, but extends to their personal representatives. Thus the executor of an indorser, and the maker of a note may be joined as defendants in an action on the note, although they are charged in different capacities, since they are liable on the same instrument. Churchill v. Trapp, 3 Abb. 306. The case would be different, however, were the original liability joint instead of several, and the maker solvent. Morehouse v. Ballou, 16 Barb. 289; Voorhis v. Baxter, 18 id. 592; S. C., 1 Abb. 43; Yorks v. Peck, 14 Barb. 644; Hulbert v. Ferguson, 40 How. 474. This section of the Code applies to bonds as well as notes. All or any of the parties severally liable on a bond may be joined in the same action. Brainard v. Jones, 11 How. 569; Quigley v. Walter, 2 Sweeny, 175. So a joint action will lie under this section against a lessor and one who is a party to the lease, and therein guarantees the performance of the lessor's covenants. Carman v. Plass, 23 N. Y. (9 Smith) 286. But it must be borne in mind that, prior to the Code, persons who were only severally liable could not be joined in the same Persons liable on the same instrument - - United in interest. action as parties defendant, and that the only exception to the old rule is contained in section 120 of the Code. This section only authorizes the joinder of parties severally liable upon the same obligation or instrument. Its application must not be extended beyond its legal intent. Le Roy v. Shaw, 2 Duer, 626; Strong v. Wheaton, 38 Barb. 616. Thus, the guarantor and the maker of a promissory note must not be joined in the same action as defendants, as a promissory note and a guaranty of payment written upon it are different instruments, and impose distinct and different obligations. Brewster v. Silence, 8 N. Y. (4 Seld.) 207; Allen v. Fosgate, 11 How. 218; LeRoy v. Shaw, 2 Duer, 626; DeRidder v. Schermerhorn, 10 Barb. 638. The fact that the note and the contract of guaranty are upon the same paper does not bring the case within the provisions of the section. Phalen v. Dingee, 4 E. D. Smith, 379; Gould v. Moring, 28 Barb. 444. See Church v. Brown, 21 N. Y. (7 Smith) 315. The same principle would also prevent the joining of the indorser and maker of a note, or the drawer and acceptor of a bill of exchange, were it not that special provision is made for such cases in section 120. Carman v. Plass, 23 N. Y. (9 Smith) 286. But the section does not authorize the joinder of the parties to a note in an action arising out of but not directly upon the note. Thus, an indorser who has been defeated in a suit upon a note cannot join prior indorsers, in an action to recover the amount he has been compelled to pay. Barker v. Cassidy, 16 Barb. 177. So, although the section applies to obligations as well as instruments on which the parties are severally liable, the word "obligation" must be confined to its legal meaning, and construed to embrace those securities only which are known in the law as bonds. Its meaning cannot be extended to embrace a cause of action not evidenced by a writing. Strong v. Wheaton, 38 Barb. 616. It, however, includes obligations in the nature of a bond, as undertakings, etc. Ib. ARTICLE IX. WHO MUST BE JOINED AS DEFENDANTS. Section 1. All persons united in interest. a. In general The Code gives the general rule that, of the parties to the action, those who are united in interest must be United in interest - Exceptions to rule - In foreclosure. joined as plaintiffs or defendants. Code, § 119. It is probable that this union of interest refers to such cases as those of jointtenants, co-trustee, partners, joint-owners or joint-contractors, simply, where a separate judgment in favor of one would not be proper in the case as stated in the complaint. The Code has not fixed any standard, for that union of interest among parties defendant, which renders their joinder in an action compulsory. Probably the common-law rule is the best test of proper joinder in such cases, and if, according to the established practice of the common-law courts, an action could have been maintained against the defendants severally, their joinder in one action under the Code is not compulsory. See Jones v. Felch, 3 Bosw. 63. As to the nature of that interest, see Articles 4 and 9 of this chapter. Section 2. Exceptions to the general rule. a. Where parties are numerous, etc. Where the question in litigation is one of common or general interest of many persons, or when the parties are very numerous and it may be impracticable to bring them before the court, one or more may sue or defend for the benefit of the whole. Code, § 119. See ante, 117. b. Residents and non-residents. Where an action is brought upon a joint indebtedness, and the obligation of each joint debtor extends to the whole demand, the plaintiff is not compelled to join, as defendants, any of such debtors as may reside out of the State. Thus, where a copartnership is composed of resident and non-resident partners, it is unnecessary to join in an action against the partnership the partners who are non-residents. Brown v. Birdsall, 29 Barb. 549; Darwent v. Walton, 2 Atk. 510. But where non-residents have rights wholly distinct from those of the resident parties, they must be joined as defendants. Thus, where a judgment creditor attempts to reach moneys due upon a mortgage which he alleges has been fraudulently assigned by the debtor, the assignee of the mortgage must be made a party, although he resides out of the State. Gray v. Schenck, 4 N. Y. (4 Comst.) 460. Section 3. In real actions. a. Actions of foreclosure. It may be laid down as a general rule that there can be no foreclosure nor redemption unless all the parties entitled to the mortgage money are before the court. The court acts upon the principle that the rights of no man shall be finally decided in a court of justice unless he himself be present, or at least until he has had a full opportunity to appear In real actions - Action for foreclosure - For partition. and vindicate his rights. A decree in a foreclosure suit is binding only upon such parties. Denton v. Nanny, 8 Barb. 618, 624. The owner of the equity of redemption is of course a necessary party; and this is true even though he owns the right by virtue of a deed unrecorded at the time of the commencement of the suit and of the filing of the notice of lis pendens (Hall v. Nelson, 14 How. 32; S. C., 23 Barb. 88; Griswold v. Fowler, 6 Abb. 113); so the wife of the mortgagor is a necessary party in order to bar her right of dower, even when the mortgage is given to secure the payment of the purchase-money. Mills v. Van Voorhies, 20 N. Y. (6 Smith) 412; S. C., 10 Abb. 152; Denton v. Nanny, 8 Barb. 618; Vartie v. Underwood, 18 id. 561. The same rule applies to the wife of the grantee of the mortgagor (Mills v. Van Voorhies, 10 Abb. 152; S. C., 20 N. Y. (6 Smith) 412; 23 Barb. 125); so a purchaser at a sheriff's sale must be made a party to a foreclosure suit, although he does not get his deed until after the commencement of the action. N. Y. Life Ins. & Trust Co. v. Bailey, 3 Edw. Ch. 416. Where the equity of redemption has been conveyed to the trustees of a corporation, in trust or for the use of the corporation, such trustees are not necessary parties. But had no use or trust been declared in the deed, and an absolute and unrestricted conveyance made to the trustees as mere descriptio personarum, the trustees would then be necessary parties, as the title would be vested in them. Case v. Price, 9 Abb. 111; S., C., 17 How. 348. All incumbrancers existing at the commencement of the suit must be made parties, or their rights will not be affected by the decree and sale thereon. Ensworth v. Lambert, 4 Johns. Ch. 605. And, in general, the proper parties to an action of foreclosure are the mortgagor and mortgagee, and those who have acquired rights or interests under them subsequent to the mortgage. Eagle Fire Co. v. Lent, 6 Paige, 635; S. C., 1 Edw. Ch. 301. b. Action for partition. A decree for a partition cannot be made unless all the persons interested in the premises are made parties to the suit. All tenants in common are indispensable parties, and by the strict rules of law all persons must be made parties, who have by any means or contingency an interest in the premises. Burhans v. Burhans, 2 Barb. Ch. 398; Ripple v. Gilborn, 8 How. 456. Thus, a widow entitled to dower in an undivided share of premises, held in common, is a necessary party in an action for partition. But judgment creditors and |