Stone v. De Puga — 6 N.Y. Super. Ct. 681

Majority

p. 681

Stone v. De Puga, impleaded with A. B. Tripler.

Headnote

Pacts, and not the evidence of facts, are to be pleaded, in suits for legal relief.

In a suit on a note, against one sought to be charged as a general partner, who was ostensibly a special- partner with the trader who made the note, the proper course is to charge the defendant in the complaint as a general partner, and if the special partnership be ,set up as a defence, then to state in reply the acts alleged as constituting him a general partner. If such acts be set forth in the complaint, they will be stricken out on motion.-

(Before Oakley, Oh. J., and Sandford and Duer, J. J.)

December 6, 1851.

Motion to strike out part of a complaint. The action was on a promissory note made by Tripler in his own name. The complaint stated that fact, that the note was given for goods sold to the firm of A. B. Tripler, that the defendants composed the firm or partnership doing business in that name, and commenced business as such partners, and that the note was made by the firm or partnership. The complaint then set forth a special partnership entered into between Tripler and Be Puga, in which the latter was the special partner, and it charged various acts done by them, which, under the statute, would make Be Puga liable as a general partner, such as his not putting in the capital specified, his withdrawing capital, and the like. The defendant moved to strike out all of the complaint that related to the special partnership and the acts done under it.

W. G. Noyes, for Be Puga.

D. JE. Wheeler, for the plaintiff.

By the Court,

concurring.) — The rule of plead

Concurrence

p. 682

ing, in actions for- a legal remedy, is the same as formerly in this, that facts,-and not the evidence of facts, must be pleaded. This suit is brought to charge JDe Puga as a dormant partner, doing business under the style and firm of “ A. B. Tripler.” The objection to this portion of the complaint is, that the matters stated are evidence to prove him to be such general partner. He is thus called upon to answer on oath these matters of evidence, and is thereby compelled to make a discovery in his answer, which under the code the plaintiff has no right to demand.

We think the regular and proper course was for the plaintiff to charge De Puga in the complaint as a general partner. In his answer' he will set up the special partnership, and the plaintiff may then reply 'the facts on which he relies to show that he was not a special, but a general partner.

Motion granted.