New-York Dry Dock Co. v. Treadwell

19 Wend. 525

• Court: New York Supreme Court
• Decided: July 15, 1838
• Status: Published

Opinion

By the Court,

Bronson, J.

In Dubois v. Ludert, 5 Taunt. 609, the common pleas decided that the non-joinder of a secret partner, might be pleaded in abatement, although the plaintiff had no knowledge of the partnership at the time the contract was made. But this decision is not warranted by some of the earlier cases, and seems not to have been followed in England. Doo v. Chippenden, Abbott on Ship. 76. Ex parte Layton, 6 Vesey, 438. Baldney v. Ritchie, 1 Stark. R. 338. Stansfeld v. Levy, 3 Stark. R. 8. Mullett v. Hook, 1 Moody & Mal. 88. In this ease Lord Tenterden said, he could not help thinking that the decision in Dubois v. Ludert had been disregarded, if not authoritatively overruled. Parke, who was of counsel for the defendant, acknowledged that his impression was to the same effect, and he did not avail himself of the leave granted by the judge to move to enter a nonsuit. See also Cullyer on Part. 425. Upon principle, I think the defendant should not be allowed to prevail on a plea of the. non-joinder of a dormant partner in abatement. It would often subject the creditor to delay and expense for the fault of the debtor in not disclosing the partnership at the time the contract was made. In this case the defendant offered to prove that the plaintiffs were informed that Taylor was a partner soon after they took the note. It was then too late. When the creditor, at the time the contract is made, is ignorant that the debtor had a secret partner, he has the option, on discovering the" partnership, of suing the debtor separately or of joining the dormant partner.

When an issue of fact joined on a plea in abatement is found against the defendant, the judgment for the plaintiff is final, quod recuperet. 3 Wend. 258. 6 id. 649. I am not aware of any exception to the rule.

New trial denied.