Holmes v. Daniels

86 N.Y.S. 19

Opinion

FREEDMAN, P. J.

The plaintiff began an action by the service of a summons and complaint upon the defendant. The complaint alleged that the defendant was carrying on business under the firm name and style of Daniels & Co. The answer was a general denial. Upon the trial the plaintiff proved that there was a partnership existing between this defendant and one Julis Brown, styled Daniels & Co., and sought to sustain his cause of action against this defendant alone by proving a contract made between himself and the firm of Daniels & Co. The court below dismissed the complaint upon the ground that the action was brought against Daniels alone. In this the court was clearly correct.

Plaintiff moved to amend the summons by inserting the name of Julis Brown as defendant. This was properly denied. Even an amendment of the complaint upon the trial, with appropriate allegations of copartnership, designed to hold the present defendant aloné liable, would have been of no avail, as the defendant would have been entitled to plead anew, and set up, by way of demurrer, a defect of parties defendant, with the necessary result of a judgment in favor of defendant.

Judgment affirmed, with costs. All concur.