Martin v. Johnson , 8 Daly 541 ( 1880 )

Van Hoesen, J.

The judgment dismissing the complaint should be reversed. I do not view the evidence as showing any assignment, and if it had been necessary to prove an assignment I should be in favor of affirming the judgment. The plaintiffs ought not to have brought their action as assignees. By using the word as between their names and the word assignees, they assumed, and sued in, a representative character, to which they had no claim. (Cordier v. Thompson, 18 Alb. [L. J.] 498 ; Yates v. Hoffman, 5 Hun. 113 ; Veershull v. Roberts, 5 East. 154.) It was perfectly proper, however, to amend the summons by striking out the words “ as assignees of Charles S. Martin.” There would then have been no doubt that the plaintiffs were suing as partners or as joint contractors. An amendment changing the right in which the plaintiffs sue may be made before trial (Tighe v. Pope, 16 Hun. 180), and I think that even upon the trial it may be allowed. . (Davis v. Schermerhorn, 5 How. 440 ; Risley v. Wightman, 13 Hun. 163.) It made no difference to the defendants whether the claim sued upon accrued to the plaintiff in the first instance, or whether it was acquired by assignment. If an amendment were allowable I think we may, upon appeal, review the refusal of the District Court to permit the proposed amendment to be made. (Walsh v. Cornett, 17 Hun. 27.) The object of the amendment certainly was not to obtain delay or to gain any unfair advantage; and the defendants could not, to the best of my judgment, have been prejudiced, unless the correction of a mistake which had not misled them may be deemed to be an improper exercise by the court of its power of amendment. Had the amendment been allowed, the right of the plaintiffs to a judgment would have been unquestionable. The evidence disclosed a contract made by the defendants with the plaintiffs as partners who dealt, on this occasion at least under the naine and style of Charles S. Martin. This the plaintiffs had a right to do. (Rogers v. Coit, 6 Hill, 322; Bank v. Monteath 1 Denio. 405 ; Palmer v. Stephens, Id. 471, 481.) A firm using the name of one of 'the partners in their partnership business may sue or be sued upon a contract made in the name so used. (5 Waits’ Law of Actions and Defences, pp. 146 and 145.) It. was error to refuse the amendment ; and if the amendment had been allowed, the plaintiffs would have been entitled to judgment. For these reasons I think the judgment should be reversed. The plaintiffs should not, under the circumstances, be cast -in costs.

Judgment reversed.