S. L. Snyder Co. v. Abrams , 158 N.Y.S. 642 ( 1916 )

Whitaker, J.

Plaintiff sued to recover for work, labor and services performed by plaintiff’s assignor for the defendant.

The undisputed testimony shows that plaintiff’s assignor made the contract to perform the services, if one was made, with the defendant alone, who did not disclose at the time that he was a member of a copart'nership, and that plaintiff was not aware of that fact until the time of the trial. When it so appeared the trial justice dismissed the complaint upon the merits. This was error. It is not sufficient to relieve a party who makes a contract from individual liability; and to shift the liability upon a firm, unless the proof shows the existence of such firm at the time of the making of the contract, and knowledge thereof on the part of the plaintiff. The contract in this case was made with the defendant individually without knowledge of the existence of the copartnership of which the defendant claimed to be a member. ■

Moreover section 27, subdivision 2, of the Municipal Court Code provides that: “-No action shall be defeated by the non-joinder or misjoinder of parties. The names of new parties may be added and the names of parties misjoined may be struck out, by order of the court, at any stage of the cause and upon such terms as justice may require.” It has also been held that the right of a defendant to have partners joined upon a partnership liability is waived unless taken by answer or demurrer (Alaska Banking & Safe Deposit Co. v. Van Wyck, 146 App. Div. 5), now by motion under section 88 of the Municipal Court Code.

Guy and Cohalau, JJ., concur.

Judgment reversed, and new trial ordered, with thirty dollars costs to appellant to abide event.