Jet Age Knitwear Machinery Corp. v. Philip

22 A.D.2d 674, 253 N.Y.S.2d 339, 1964 N.Y. App. Div. LEXIS 2961

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 1964
• Status: Published

Opinion

Order, entered on July 10,1964, denying defendant Philip’s motion to dismiss the complaint against “ Philip Knitting Mills ” and for alternative relief, unanimously modified, on the law, .to delete all directions from the order except the denial of the motion, and the order, as so modified, affirmed, without costs to any party. The motion must have been denied (or dismissed) because the alleged partnership was not a party to the action, was not named as a partnership entity in .the complaint, and the motion was not made by - it. It was not proper to amend the caption or the allegations of the pleading to include the partnership as a party. If plaintiff claims any rights against the partnership, he must first obtain leave of the court on proper papers to add the partnership as a party, amend the caption, add appropriate allegations in the pleading, and to serve or reserve a partner in that capacity. The description in the caption and complaint of defendant Philip as doing business under a certain style is not equivalent to including the partnership entity, although the style happens to coincide with the name of the partnership. In consequence, there is nothing in the caption or pleading which relates -to the partnership. Concur—-Breitel, J. P., Val ente, McNally, Stevens and Eager, JJ.