General
Thomas Bentley and others against Warren Smith and others
3 Cai. 170·New York Supreme Court of Judicature·1805·NY
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Opinion
Thomas Bentley and others against Warren Smith and others.
. ON a promissory note to Thomas Bentley, Allen Potter, John P. Becker, and Company, the declaration commenced in this way :
A promissory jv>\.edoA.B.(C. though there be no otherpersons in the firm, cannot be declared tire Addition of ⅜ Company, viduaf^names must be stated, de^riptton SUof trading under otherw?se&it is bad on general demurrer.
Albany, to wit: Thomas Bentley, Potter, John P. Becker, and Company, complain &c. To this a general demurrer.
Foote insisted, that it was evident on the face of the re-corch ^at there were otherpersons not mentioned who ought to have been joined. Such a circumstance, if proved on a tr^ah would have prevented a recovery, and was equally fatal on general demurrer,
C™ry, contra,
was stopped by the court,
[MAJORITY — Per curiam.]
Per curiam.
Stating that the plaintiffs named, and comPan7 complain, is acknowledging that other persons ought to sue. Did the defendants ever acknowledge there were no others ; this mode of declaring ought not to be suffered. Why did you not say Thomas Bentley, Allen Potter, and John P. Becker, trading under the stile and firm of T. B« A. P. J. P. B. and Company ? The demurrer is well taken, and the defendants entitled to judgment. But the plaintiffs may amend on payment of costs.