Hyperlawhypertext legal database Kilpatrick v. Villaume 56 N.Y. St. Rep. 615

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Kilpatrick v. Villaume

56 N.Y. St. Rep. 615 Court N.Y. City Ct. Decision date 1893-11-27 English

Delivered by Van Wyck, P. J.

Contents

Majority

p. 615
Margaret H. Kilpatrick, Resp’t, v. Henry Villaume, Appl’t.
(New York City Court, General Term,
Filed November 27, 1893.)

Headnote

Bills and notes—Fictitious name.
The use of a fictitious name by the payee in doing the work for which the note was given, is no defense to an action thereon.
Appeal by defendant from judgment entered on verdict directed by the court for plaintiff.
Kelly & Macrae, for pl’ff-resp’t; F. Jellenik, for de’ft-app’lt.

The plaintiff sues upon three promissory notes made by defendant to order of Kilpatrick & Eoylance and alleges that they were made and delivered to her “ doing business as successor to and under the name of Kilpatrick & Eoylance.” The defendant resists on the sole defense, that when the notes were made, there was no such partner as Eoylance, and that plaintiff had not filed the certificate and published the notice for continuing the use of such firm name as required by statute. In the Barron case, 12 N. Y. Supp., 455 ; 35 St. Rep., 380 , Chief Justice J. F. Daly, in referring to the rule laid down in the Gay case, 97 N. Y., says: “This decision establishes the rule, that it is not every case of transacting' business under a fictitious name that is within the statute, but that to make the act illegal, it must appear that credit was given to and reliance placed upon the false designation, and that credit was given to the persons using the false designation; and in the case before us the proposed defense

p. 616
merely alleges the use of the fictitious name by the plaintiff in doing the work for the defendant, and in making the contract therefor, and in carrying on of the business by plaintiff under the fictitious name. These facts alone, if proved, would constitute no defense under the case quoted, and the motion to amend the answer by setting them up was properly denied.” This decision in' the Barron case was rendered by our appellate authority six years subsequent to the adoption of chapter 262 of Laws of 1886. Hence the judgment must be affirmed, with costs.

Newburger and McCarthy, JJ., concur.