Hyperlawhypertext legal database Baumann v. De Logerot 26 N.Y.S. 986

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Baumann v. De Logerot

26 N.Y.S. 986 Court N.Y. Gen. Term Decision date 1893-12-15 English

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p. 986
BAUMANN v. DE LOGEROT et al.
(Supreme Court, General Term, First Department.
December 15, 1893.)

Headnote

Contracts—Validity—Violation on Statute.
A violation of Penal Code, § 363, making It a misdemeanor for any person who transacts business to use the name as a partner of one not interested with him as a partner, does not render a contract made in such name-void.
Appeal from special term, New York county.
p. 987
Action by Ludwig Baumann against Richard De Logerot and another to recover the price. of goods sol'd under such contract. From an order granting judgment on a demurrer as frivolous, and from a judgment entered thereon, plaintiffs appeal.
Affirmed.
Argued before VAN BRUNT, P. J., .and O’BRIEN and FOLLETT, JJ.
Coudert Bros., (F. R. Coudert, Jr., of counsel,) for appellants.
“It any argument is required to show that the demurrer is had, it is not frivolous.”' Cook v. Warren, 88 N. Y. 37 . See, also, Barney v. King, (Sup.) 13 N. Y. Supp. 685 ; Youngs v. Kent, 46 N. Y. 672 ; Wise v. Gessner, 47 Hun, 306 ; Carpenter v. Adams, 34 Hun, 429 ; Chauncey v. Lawrence, 15 Abb. Pr. 106 ; Merritt v. Gouley, (Sup.) 12 N. Y. Supp. 132 .
The first allegation of the complaint states “that the plaintiff, during all the times hereinafter mentioned, was, and now is, doing business in the city of New York, under the name and style of Baumann Brothers.” This on its face is clearly illegal, being contrary to the prohibitions in section 363 of the Penal Code, and in the law of 1833 against the use of fictitious names in a partnership. “A person who transacts business, using the name as partner of one not interested with him as partner, or using the designation ‘and Company,' or '& Co., when no actual partner pr partners are represented thereby, is guilty of a misdemeanor. But this section does not apply to any case where it is especially prescribed by statute that a partnership name may be continued in use by a successor, survivor or other person.” Pen. Code, § 363; O’Toole v. Garvin, 1 Hun, 92 ; Swords v. Owen, 43 How. Pr. 176 , 34 N. Y. Super. Ct. 277 . “No person shall hereafter transact business in the name of a partner not interested in his firm, and when the designation ‘and Company,’ or ‘& Co.’ is used it shall represent an actual partner or partners; but a violation of this section shall not be a defense in an action or proceeding brought by an assignee for the benefit of creditors, or by a receiver of the property, or by an executor or administrator of a person who has violated the same.” Laws 1833, c. 281, § 1, as amended Laws 1886, c. 262. In order to avoid the consequences of a violation of the foregoing, compliance must be shown with the following statute: “On every change of the person or persons continuing the use of said name, he or they shall sign or acknowledge before any officer by law authorized to take acknowledgment of deeds, a certificate declaring the person or persons dealing under such name, with their place or places of abode,- and file the same with the clerk of the county in which shall be his or their principal place of business and shall cause the same to be published in a newspaper printed in the town or city in which shall be such principal place of business, or -if none be printed in such town, then in a newspaper printed in the county town, and in the newspaper printed by the printer of this state, for four successive weeks.” Laws 1854, c. 400, § 2. Not only does this co-mplaint show nothing of the kind, but it contains specific allegations that the plaintiff is doing business under a fictitious name, in violation of statute, to wit, “in the name of a partner not interested in the firm.” His pleading therefore contains almost a literal statement that be has violated the law, as there is nothing whatever in it tending to show that he has complied with the terms of the statute of 1855.
The use of the name Baumann Bros. was in violation of the statute. Lunt v. Lunt, 8 Abb. N. C. 76 ; Wood v. Railway Co., 72 N. Y. 196 .
Contracts made in direct contravention of a prohibitory statute have always been considered to be illegal, and the point has hardly been considered a debatable one. Bank v. Owens, 2 Pet. 539 ; Aubert v. Maze, 2 Bos. & P. 374; Watts v. Brooks, 3 Ves. 612; Bish. Cont. § 471; Barton v. Plank-Road Co., 17 Barb. 397 , (citing Nellis v. Clark, 4 Hill, 424 ; Hook v. Gray, 6 Barb. 398 ; Thalimer v. Brinkerhoff, 20 Johns. 397 ; Brisbane v. Pratt, 4 Denio, 63 ; and also Hallett v. Novion, 14 Johns. 273 ; Griffith v. Wells, 3 Denio, 226 .)
p. 988
Contracts contrary to this particular statute have been declared void. Swords v. Owen, 43 How. Pr. 176 , 34 N. Y. Super. Ct. 277 , citing Pennington v. Townsend, 7 Wend. 276 .
To the same effect was Griffith v. Wells, 3 Denio, 226 .
A great mass of authorities holding contracts and business transactions contrary to statutes void is collected in 25 Amer. Rep. 675, note, (Woods v. Armstrong.)
Shepard & Prentiss, (William H. Shepard, of counsel,) for respondent.
(1) The use of the name Baumann Bros. is not a violation of the statute of 1833, c. 281, amended by Laws 1886, c. 262; or of section 363 of the Penal Code. It is well settled that a person may transact business under any name which he may assume for that purpose. Gay v. Seibold, 97 N. Y. 476 ; De Youngs v. Jung, (Com. Pl. N. Y.) 25 N. Y. Supp. 479 . In Gay v. Seibold, supra, the court say: “To violate this statute, the designation ‘and Company’ or ‘& Co.,’ must be used in the transaction of some business.” The name Baumann Bros, does not in any way (without proof) tend, legally, to convey to any mind the impression that a firm is intended.
(2) The statute in question is highly penal, and will not be extended. It was intended to prevent the use of the name of a person not interested in a firm, and the inducement thereby of a false credit, to which it was not entitled. Zimmerman v. Erhard, 83 N. Y. 77 ; Wood v. Railway Co., 72 N. Y. 198 , 9 Hun, 650 ; Rosenheim v. Rosenfield, (Sup.) 13 N. Y. Supp. 721 ; Barron v. Yost, (Com. Pl. N. Y.; Daly, C. J.) 12 N. Y. Supp. 456 .
(3) The statute does not affect the validity of a contract, except where a credit has' been obtained by a person using such name. It is not a defense to a debtor. Barron v. Yost, supra; Gay v. Seibold, supra.

We are of the opinion that the order and judgment appealed from should be affirmed, with costs. Even if the plaintiff has, by the use of the firm name of Baumann Bros., violated the provisions of section 363 of the Penal Code, and of the Laws of 1833, (which we do not decide,) he has not thereby become an outlaw, and lost all civil rights. Judgment and order affirmed, with costs.

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