Baldwin & Son v. Caflisch

Appellate Division of the Supreme Court of New York

Baldwin & Son v. Caflisch

182 A.D. 477, 170 N.Y.S. 354, 1918 N.Y. App. Div. LEXIS 5037

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 27, 1918

StatusPublished

This text of 182 A.D. 477 (Baldwin & Son v. Caflisch) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baldwin & Son v. Caflisch, 182 A.D. 477, 170 N.Y.S. 354, 1918 N.Y. App. Div. LEXIS 5037 (N.Y. Ct. App. 1918).

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Opinion

Kruse, P. J.:

The plaintiffs seem to have a meritorious claim against the defendant but they brought suit against him in then-partnership name. The action should have been prosecuted in the individual names of the partners. There was no allegation in the complaint of a partnership, but that objection was taken in the answer and upon the trial and the evidence conclusively shows that there was such a partnership composed of father and son. I have no doubt that the justice of the peace had power when attention was called to the defect, or at any time during the trial, to cure the defect by amendment. (Code Civ. Proc. § 723; Bank of Havana v. Magee, 20 N. Y. 355.) Such has been the practice by the courts of other States.. (Morgridge & Merrick v. Stoeffer, 14 N. D. 430; Lewis v. Locke, 41 Vt. 11; Red River Valley Cotton Co. v. Stalcup Mercantile Co., 41 Okla. 34; Barber v. Smith, 41 [478]*478Mich. 138; 1 N. W. Rep. 992; Spaulding Mfg. Co. v. Godbold, 92 Ark. 63; 29 L. R. A. [N. S.] 282, note, 284.) But no such amendment was made or asked and the objection was disregarded. The defect not having been waived or cured compels a reversal.

The judgment of the Justice’s Court and County Court should be reversed, with costs.

All concurred; Lambert, J., not sitting.

Judgment of County Court and judgment of Justice’s Court reversed, with costs in all courts to the appellant.

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Kruse, P. J.:

The plaintiffs seem to have a meritorious claim against the defendant but they brought suit against him in then-partnership name. The action should have been prosecuted in the individual names of the partners. There was no allegation in the complaint of a partnership, but that objection was taken in the answer and upon the trial and the evidence conclusively shows that there was such a partnership composed of father and son. I have no doubt that the justice of the peace had power when attention was called to the defect, or at any time during the trial, to cure the defect by amendment. (Code Civ. Proc. § 723; Bank of Havana v. Magee, 20 N. Y. 355.) Such has been the practice by the courts of other States.. (Morgridge & Merrick v. Stoeffer, 14 N. D. 430; Lewis v. Locke, 41 Vt. 11; Red River Valley Cotton Co. v. Stalcup Mercantile Co., 41 Okla. 34; Barber v. Smith, 41 [478]*478Mich. 138; 1 N. W. Rep. 992; Spaulding Mfg. Co. v. Godbold, 92 Ark. 63; 29 L. R. A. [N. S.] 282, note, 284.) But no such amendment was made or asked and the objection was disregarded. The defect not having been waived or cured compels a reversal.

The judgment of the Justice’s Court and County Court should be reversed, with costs.

All concurred; Lambert, J., not sitting.

Judgment of County Court and judgment of Justice’s Court reversed, with costs in all courts to the appellant.

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182 A.D. 477, 170 N.Y.S. 354, 1918 N.Y. App. Div. LEXIS 5037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldwin-son-v-caflisch-nyappdiv-1918.

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