Brainerd v. Bertram — 5 Abb. N. Cas. 102

Majority

p. 102

BRAINERD v. BERTRAM.

N. Y. Supreme Court, First Department;

General Term, October, 1878.

Headnote

Pleading. — Parties Plaintiff. — Demurrer to Complaint. — Code of Civ. Pro. § 448.

The fact that a partnership consists of more than forty members, residing in diSerent counties, does not authorize an action to be brought in the name of one of the partners, for the benefit of all. A managing partner has no legal right to bring an action in his own name for the recovery of an indebtedness to the copartnership.

Appeal by plaintiff from an order sustaining a demurrer to a complaint.

This action was brought by Erastus Brainerd against Louis Gr. Bertram and others upon a promissory note.

The defendant Bertram demurred to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action ; that there was a defect of parties plaintiff ; and that the plaintiff had not legal capacity to sue.

The demurrer was sustained by the court at special term, on the following opinion.

“Yak Yorst, J. — The plaintiff avers in his complaint, that Brainerds & Co. are copartners ; that the members of the partnership are very numerous, to wit, more than forty in number ; that they reside in different countries, and that it is impracticable to bring them all before the court in this action, and that the plaintiff is the managing partner, wherefore he sues for the benefit of all the members.

“The fact that the plaintiff is the managing partner gives him no legal right to bring an action in his own

p. 103

name for the recovery of an indebtedness to the co-partnership.

“ The general rule is, that every action must be prosecuted in the name of the real party in interest {Code, § 111), except as provided in section 113. This section provides, that an executor or administrator, or a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. But the plaintiff stands in no such relation.

“ Section 119 provides, that those who are united in interest must be joined as plaintiffs, but when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the others. It is under this section, doubtless, that the plaintiff has ventured to bring this action in his own name. But I do not think that the plaintiff’s case is of the character contemplated by the exception in the closing part of section 119. It is not impracticable to bring in, as plaintiffs, all the partners. And I think the defendant has the right to demand that those united in interest should be named as plaintiffs, and that they should take the responsibility of the litigation. The demurrer is sustained. But plaintiff is at liberty to amend upon the usual terms.”

From the order entered thereon, the plaintiff appealed to the general term.

John Hayes, for appellant.

The second ground of demurrer is insufficient in not specifying the particular defect complained of (Skinner v. Stuart, 13 Abb. Pr. 442 ; People ex rel. Lord v. Crooks, 53 N. Y. 648 ; Code of Civ. Pro. §§ 448, 488, 490; Code of Pro. §§ 119, 122; Wallace v. Eaton, 5 How. Pr. 99 ). The allegations of the complaint as to the character in which plaintiff sues are to be taken as admitted by the defendant demurring

p. 104

(Cutler v. Wright, 22 N. Y. 472 ); and being admitted, the plaintiff has clearly brought himself within the provisions of section 119 of Code of Pro. and has made out a prima facie cause of action. The plaintiff has legal capacity to sue (Le Page v. McCrea, 1 Wend. 164 ; Chapin v. Clemitson, 1 Barb. 311 ; Cunningham v. Littlefield, 1 Edw. Ch. 104 ; Green v. Elmer, 8 N. Y. 422 ; Briggs v. Smith, 4 Daly, 110 , and cases cited; Myers v. Machado, 6 Abb. Pr. 198 ). The provisions of the code are equally applicable to all manner of actions, whether legal or equitable (Code of Pro. § 69; Kirk v. Young, 2 Abb. Pr. 453 ). Copartners can avail themselves of the provision (Jones v. Felch, 3 Bosw. 66 ; McKenzie v. L’ Amoreaux, 11 Barb. 516 ); or any party united in interest with others, so numerous that it would be impracticable to bring them all in," or if brought in, to prevent the suit being continually abated by death or a change of interest (Smith v. Lockwood, 1 Code R. N. S. 319; Wood v. Draper, 4 Abb. Pr. 322 ; Bouton v. City of Brooklyn, 15 Barb. 375 ; Roosevelt v. Varnum, 12 How. Pr. 469 ; Towner v. Tooley, 38 Barb. 598 ; Greene v. Breck, 10 Abb. Pr. 42 ; Brooks v. Peck, 38 Barb. 519 ; Habicht v. Pemberton, 4 Sandf. 657 ). The exception to the general rule in the II. S. courts, that all persons interested must be made parties, is restricted to those whose interests are in the issue and to be affected by the decree (Cases cited above; and Mechanics’ Bank v. Seton, 1 Pet. 299 , 306; Mandeville v. Riggs, 2 Id. 482).

Henry Ferris, for respondent.

The names of the parties should be set forth in the title or in the body of the complaint (Hill v. Thacter, 3 How. Pr. 407 ; Stanley v. Chappell, 8 Cow. 235 ). In stating the names of the parties it is not necessary to add any description (Sheldon v. Hoy, 11 How. Pr. 15 ; Merritt v. Seaman, 6 N. Y. 168 ). Section 119 of the Code of Procedure ap

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plies to cases where the parties are very numerous, and it is impracticable to bring them all before the court, and that fact should distinctly appear before the complaint can be upheld (Smith v. Lockwood, 13 Barb. 218 ; Wood v. Draper, 4 Abb. Pr. 322 ; Kirk v. Young, 2 Id. 453 ). The plaintiff has not legal capacity to sue. (Russell v. Clapp, 7 Barb. 482 ; Bentley v. Jones, 4 How. Pr. 202 ; McMurray v. Gifford, 5 Id. 14; Parker v. Totten, 10 Id. 233; Thomas v. Desmond, 12 Id. 321; Freeman v. Fulton Fire Ins. Co., 14 Abb. Pr. 407 ; Bank of Lowville v. Edwards, 11 How. Pr. 216 ; Johnson v. Kimp, Id. 186; Bank of Havana v. Wickham, 16 Id. 97). A cause of action is the right a party has to institute and carry through a proceeding (Meyer v. Van Collem, 28 Barb. 231 ). Where it appears on the face of the complaint, that the subject of the action, though in possession of the plaintiff, is nevertheless the property of another, the complaint does not state a cause of action in the plaintiff (Palmer v. Smedley, 6 Abb. Pr. 463 ; S. C., 28 Barb. 468 ; People v. Booth, 32 N. Y. 397 ; Myers v. Machado, 14 How. Pr. 149 ; S. C., 6 Abb. Pr. 198 ).

[The order of the special term was affirmed by the general term on the foregoing opinion of Vah Vorst, J.]

Cases cited

Skinner v. Stuart 13 Abb. Pr. 442 N.Y. Sup. Ct. p. 103
People ex rel. Lord v. Crooks 53 N. Y. 648 N.Y. 1873-10-10 p. 103
Wallace & La Tourette v. Eaton 5 How. Pr. 99 N.Y. Sup. Ct. p. 103
Cutler v. Wright 22 N. Y. 472 N.Y. p. 104
Le Page v. McCrea 1 Wend. 164 N.Y. Sup. Ct. p. 104
Chapin v. Clemitson 1 Barb. 311 N.Y. Sup. Ct. 1847-11-23 p. 104
Cunningham v. Littlefield 1 Edw. Ch. 104 N.Y. Ch. 1831-09-16 p. 104
Green v. Elmer 8 N. Y. 422 N.Y. p. 104
Myers v. Machado 6 Abb. Pr. 198 N.Y. Super. Ct. p. 104, p. 105
Kirk v. Young 2 Abb. Pr. 453 N.Y. Sup. Ct p. 104
McKenzie v. L'Amoureux 11 Barb. 516 N.Y. Sup. Ct. 1851-09-01 p. 104
Wood v. Draper 4 Abb. Pr. 322 N.Y. Sup. Ct. p. 104, p. 105
Bouton v. City of Brooklyn 15 Barb. 375 N.Y. Sup. Ct. 1853-07-04 p. 104
Roosevelt v. Varnum 12 How. Pr. 469 N.Y. Sup. Ct. p. 104
Towner v. Tooley 38 Barb. 598 N.Y. Sup. Ct. 1860-07-02 p. 104
Greene v. Breck 10 Abb. Pr. 42 N.Y. Sup. Ct. p. 104
Brooks & Cummings v. Peck 38 Barb. 519 N.Y. Sup. Ct. 1862-12-13 p. 104
Habicht v. Pemberton 4 Sandf. 657 N.Y. Super. Ct. p. 104
Mechanics Bank v. Seton 1 Pet. 299 SCOTUS at 306 p. 104
Hill v. Thacter 3 How. Pr. 407 N.Y. Sup. Ct. p. 104
Stanley v. Chappell 8 Cow. 235 N.Y. Sup. Ct. p. 104
Russell v. Clapp 7 Barb. 482 N.Y. Sup. Ct. 1849-12-03 p. 105
Bentley v. Jones 4 How. Pr. 202 N.Y. Sup. Ct. p. 105
Bank of Lowville v. Edwards 11 How. Pr. 216 N.Y. Sup. Ct. p. 105
Palmer v. Smedley 28 Barb. 468 N.Y. Sup. Ct. 1858-11-04 p. 105
People v. Booth 32 N. Y. 397 N.Y. p. 105
Myers v. Machado 14 How. Pr. 149 N.Y. Super. Ct. p. 105