Taylor v. Bell & Bogart Soap Co. — 18 A.D. 175

Majority

p. 175

Eugene Minor Taylor, Respondent, v. Bell & Bogart Soap Company, Appellant.

Headnote

Sales — the use by a vendor of a fietitioxis firm name — not a defense to a vendse not misled thereby.

The fact that a vendor in. malting a sale has transacted business under a fictitious name, does not constitute a defense, under chapter 262 of the Laws of 1886, to an action brought by him against the vendee to recover for a violation of the contract of sale where the answer does not allege that the vendee was induced by the use of the fictitious firm'name to give credit or was 'otherwise misled to his injury by such use.

Appeal by the defendant, the Bell & Bogart Soap Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th

p. 176

day of December, 1896, upon the decision of the court rendered after a trial at the Kings Special Term sustaining the plaintiffs demurrer to the second defense contained in the answer of the defendant.

Francis 3£. Fppley, for the appellant.

Howwd 0. Wood and Frederick T. Hill, for the respondent.

The complaint alleges that one Hugh Hill, doing business under the firm name of Edward Hill’s Son & Co., made a contract with the defendant to , sell certain merchandise; that the defendant failed to take some of the merchandise, and that Hill suffered damage, to recover which this action is brought. Hill assigned the cause of action to the plaintiff.

The defense to which the demurrer was interposed sets up that the name of Edward Hill’s Son & Co. was fictitious, and that Hill was transacting business in violation of chapter 262 of the Laws of 1886. • The answer did not allege that the defendant was induced by the use of such firm name to give any credit, or that it was misled to its-injury by the use of the fictitious firm name.

The question raised by the demurrer has already been decided, by the Court of Appeals in the case of Gay et al. v. Seibold ( 97 N. Y. 472 ), where the subject was fully discussed, and the court held that, as no credit was given to and no reliance placed upon the false. designation, the intention of the statute should be taken into con-' sideration, and that the case was not within the purpose or intent of the statute; and that the use of the fictitious name was not a defense to an action upon a bond given to the fictitious firm.

The judgment is affirmed.

All concurred.

Judgment affirmed, with costs.

Cases cited

Gay v. Seibold 97 N. Y. 472 N.Y. 1884-12-02 p. 176