Majority
p. 446Elwood S. Hand, App’lt, v. Charles P. Rogers et al., Resp’ts. (New York City Court, General Term, Filed October 29, 1895.)
Headnote
Contracts—Joint obligation.The complaint in an action on a contract made by a firm, will be dismissed where it appears that the defendants are a firm which was not in existence when the contract was made, though composed in part of the same members as the other firm.
Appeal from a judgment dismissing the complaint.
J. H. Hull, for app’lt; Charles DeH. Brower, for resp’ts.
The plaintiff failed to show that the defendants were copartners; not only that, but he affirmatively shows-
p. 447
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. Eogers individually. The agreement in question was not one upon which he might be sued alone. It was nob his individual agreement, but the agreement of his firmas it then existed; and no action could be maintained against Eogers 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 ho judgment could be entered against him; and therefore, as against him, the complaint was rightfully dismissed.
The judgment is affirmed, with costs.