Teller v. Gerry — 61 N.Y.S. 864

Majority

p. 864

TELLER et al. v. GERRY et al.

(Supreme Court, Appellate Term.

December 28, 1899.)

Headnote

Partnership—Action against Firm—.Judgment against Partner.

In an action' against two defendants, as co-partners, for a partnership liability, it is error to halve the amount sued for, and render an individual judgment for that sum against the one defendant on whom service was had.

Appeal from municipal court, borough of Manhattan, First district.

Action by Robert Teller and others against Theodore L. C. Gerry and Charles Murray. From a judgment against defendant Charles Murray, he appeals. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

Arnold Charles Weil, for appellant.

Henry L. Maxson, for respondents.

An action for work, labor, and services was brought against the defendants as co-partners. If any liability existed on their part for breach of the contract, it was joint, and required a judgment against both in their partnership capacity. The justice halved the amount sued for, and rendered judgment for that half against the defendant Charles Murray, he being the only one served. It is obvious that there must be a reversal. There is no authority for such a division, or for the individual judgment given. It did not require personal service on the other defendant, to give the court jurisdiction of the partnership; and the liability, being a partnership liability, could not be enforced against a member individually until after the partnership assets had been exhausted. Neither on the pleadings nor on the proof were the plaintiffs entitled to the judgment obtained, either as to form or amount. There must be a new trial.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.

FREEDMAN, P. J., concurs; MacLEAN, J., in result