Green v. Lippincott — 53 How. Pr. 33

Majority

p. 33

SUPREME COURT.

Frederick H. Green agt. C. Lippincott and another.

Headnote

Demurrer to complaint for nonjoinder!' cfpm'ties defendant.

Where the complaint alleged that there were “ other individuals comprising the firm of J. B. Lippincott & Company ” besides the two persons made defendant, held, that the other partners are necessary parties, and that to render the omission to make them parties available on demurrer, the defect appearing on the face of the complaint, it was not necessary that it should also appear that the other parties were living.

Demubbeb to complaint.

Special Term, February, 1877.

Mr. Fdward Patterson, for demurrer.

Mr. R. M. Brown, opposed.

The statement in the complaint is, in substance, that there are “ other individuals comprising the firm of J. B. Lippincott & Company ” other than the two defendants named.

As the suit is brought for the alleged breach of a contract made by the copartners with the plaintiff, the other partners are necessary parties, and the omission to make them defendant is a good ground of demurrer, the defect appearing on the face of the complaint.

To.make the ground of demurrer available it was not necessary that it should appear in the complaint that the

p. 34

other partners were living (Burgess agt. Abbott, 6 Hill, 135 ; Eaton agt. Balcom, 33 How., 81 ; Code, sec. 144, sub. 4).

As to the defect of parties defendant the demurrer is well taken, but I do not regard the objection that several causes of action have been improperly joined as well taken. The cause of action seems to be entire and to rest upon the breach of the contract.

The matter in regard to the retention by the defendants of the books, I do not consider a statement of an independent cause of action. It may, however, add to the defendants’ damages for the breach.

The first 'cause of demurrer is sustained, but the second is overruled.

The plaintiff is at liberty to amend, upon payment of costs.