Hand v. Rogers — 35 N.Y.S. 712

Majority

p. 712

(14 Misc. Rep. 248.)

HAND v. ROGERS et al.

(City Court of New York, General Term.

October 29, 1895.)

Headnote

Contracts—Action on—Joint Obligation.

In an action on a contract made by a firm, the complaint will be dismissed where it appears that defendants compose a firm which was not in existence when the contract was made, though some of them were members of the other firm.

Appeal from trial term.

Action by Elwood S. Hand against Charles P. Rogers and others. The complaint was dismissed, and plaintiff appeals. Affirmed.

For former reports, see 28 N. Y. Supp. 521 , 32 N. Y. Supp. 920 .

Argued before VAN WYCK, C. J., and FITZSIMONS, J.

J. H. Hull, for appellant.

Charles DeH. Brower, for respondents.

The plaintiff failed to show that the defendants were copartners; not only that, but he affirmatively shows that the defendants’ firm was not the firm who signed the instrument or agreement upon which this action is based. It is a fact that defendants’ firm was not in existence at the time it was signed. Therefore, it is clear that no cause of action was established against the defendants. The plaintiff was not entitled to a judgment against Charles P. Rogers individually. The agreement in question was not one upon which he might be sued alone. It was not his individual agreement, but the agreement of his firm as it then existed; and no action could be maintained against Rogers individually upon such agreement, and could only be brought against him and his (then) copartners. This being, in our judgment, the law, it follows that in this action no judgment could be entered against him; and therefore, as against him, the complaint was rightfully dismissed.

The judgment is affirmed, with costs.