Frederick W. Sparks, Respondent, v. Thomas L. Fogarty, Appellant

Frederick W. Sparks, Respondent, v. Thomas L. Fogarty, Appellant. Action for goods sold, to a copartnership—all the pa/rtners must be made pa/rties defendant — the defect of pa/rties need not be pleaded where one pa/rtner is sued and no mention is made of the copartnership—practice in New Toils Municipal Court. In an action to recover the value of goods sold and delivered to a copartnership, all of the partners must be made defendants. Where such an action is brought in the Municipal Court of the city of New York against but one of the partners, and the complaint therein makes no mention of any partnership, the failure to plead the non-joinder of the other partners does not preclude the defendant from raising that objection on the trial. Semble, that in the Municipal Court of the city of New York the defense of a non-joinder of parties must ordinarily be raised by answer or it will be deemed to have been waived. Appeal by the defendant, Thomas L. Fogarty, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, entered on the 3d day of December, 1903. Henry A. Rubino, for the appellant. W. S. Taylor, for the respondent. [MAJORITY — Hooker, J.:] Hooker, J.: This is an appeal by the defendant from a judgment of the Municipal Court, awarding to the plaintiff the full amount of the plaintiff’s claim. The pleadings were oral, and the plaintiff “ complained of defendant for goods sold and delivered in the sum of $163.50.” The answer is a general' denial. Upon' the trial the plaintiff’s evidence tended to show that the goods mentioned in the complaint were sold to a partnership, of which the defendant was a member, and not to the defendant individually. While the claim is made by the plaintiff that there is evidence from which the justice might have found that the defendant purchased the goods in his individual capacity, we cannot concur in that view. The substance of the conversations between the parties and the copartner of the defendant, and till of the circumstances surrounding the sale of the goods, preclude the theory that the sale was to the defendant individually. The judgment cannot be sustained under the authority of New York Fastener Co. v. Wilatus (65 App. Div. 467), which case is directly in point, and a further discussion of the legal question involved in this case is, therefore, unnecessary. The plaintiff’s claim that the defendant has waived a non-joinder of his copartner, and that, therefore, the judgment must ba affirmed, is without merit. While it is no doubt true that thé nonjoinder of necessary parties must be raised in the Municipal Court by answer or be deemed to be waived (Amsterdam, Electric Light Co. v. Rayher, 43 App. Div. 602), it is sufficient to note that the complaint alleged an indebtedness of an individual defendant and made no mention of a partnership relation. Had the plaintiff seen fit to amend his pleading so as to allege a sale to the partnership, of' which the defendant was a member, and thereupon the defendant had not amended his answer by raising the question of non-joinder,, the plaintiff’s contention might prevail, but the plaintiff distinctly refused to adopt the suggestion made upon the trial that he amend, his. complaint in that respect, and the defendant by his general denial to the complaint, as it stood, raised an issue that the goods were not sold to him. All the proof substantiated the defendant’s claim, and upon the authority of New York Fastener Co. v. Wilatus (supra), the judgment of the Municipal Court must be reversed. Judgment reversed, with costs. All concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.