Bacon v. Dinsmore

42 How. Pr. 368

• Court: New York Supreme Court
• Decided: February 15, 1872
• Status: Published

Opinion

By the court, Gilbert, J.

The defendant has a legal right to have the place of trial changed to New York, if the persons named as plaintiff or defendant are the parties to the action. The court has no discretion about it (Code, § 125.)

We think they are parties. The associations which they represent, clearly are not, nor could they be made parties, inasmuch as they have no legal capacity to sue, or to be sued. Such associations are not corporations, but are mere partnerships. But for the statute authorizing suits to be brought by and against them in the name' of officers thereof, all the partners would have to be joined as plaintiffs and defendants. Suits may still be brought by such associations although, when sued, it must, in the first instance, be in the name of the president or treasurer (Laws 1849, ch., 258, 1853, ch., 153.) The partners are not parties, because they are not named on the record.

It is not even known how many, or who they are. The parties named are, therefore, the parties in a legal sense. It is true, the suit is carried on for others who are beneficially interested with the nominal parties, but that is the case, when the action is brought by the trustee of an express trust (Code, § 113,) by an agent contracting in his own name, without disclosing his principals, or when the contract is made for an unknown principal, by executors and administrators and the like cases. And yet, it is clear, that such beneficiaries are not parties to such actions. The superior court of New York, took a similar view of the subject in a case arising under section 390 of the Code, authorizing the examination of a party (Woods agt. De Figaniere, 16 Abb., 1)

The order appealed from, must be reversed, with $10 costs, and an order must be entered, changing the place of trial tc the city and county of New York.