APPEAL by the plaintiff, the Alaska Banking and Safe Deposit Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of March, 1911, upon the dismissal of the complaint by direction of the court as to certain defendants at the close of plaintiff's case on a trial at the New York Trial Term.
H. Snowden Marshall, for the appellant.
Archibald C. Shenstone, for the respondents.
This action was brought to recover against the defendants, as copartners doing business under the name Chicago Creek Coal Company, upon a promissory note made by the defendant Solomons, and signed by him individually and as manager of such company. Upon the trial evidence was offered showing the formation of a syndicate under the name Chicago Creek Coal Company, of which the defendant Solomons was manager, and tending to show that at least some of the defendants besides Solomons were liable upon the note. The trial court was of the opinion, however, that the plaintiff had failed to prove the cause of action alleged and dismissed the complaint at the close of plaintiff's case, except as to the defendant Solomons. Judgment was entered to this effect, from which the plaintiff appeals.
It appears that one Church and one Hart had originally been members of the syndicate, but had died prior to the commencement of this action. That fact, however, did not appear in the complaint, which contained only a general allegation that the defendants were partners, but was brought out by the plaintiff's proof. Their executors were made parties defendant and it is conceded by the appellant's counsel that they did not become partners and no cause of action against them was established. It also appeared there were other members of the syndicate who were not mentioned in the complaint or made parties to the action. The answers of the different defendants contained only general denials of the allegations of the complaint, and this defect in parties was not disclosed until developed by the evidence. The trial court was of the opinion that the plaintiff could not, in any event, recover against any of the defendants except Solomons without amending the complaint so that it would show exactly who were members of the syndicate at the time the note was given. The plaintiff's counsel declined to amend the complaint, and, in order to avoid prolonging the trial unnecessarily, offered to prove facts which would establish the liability of all the defendants upon the note. The defendants' counsel objected to the proof of such facts on the ground that such proof would not tend to establish the cause of action set out in the complaint because it appeared that at least two of the defendants were not copartners and two who were had not
been made parties. The objection was sustained, an exception taken, and the complaint was then dismissed, to which an exception was also taken.
For the purposes of this appeal it must be assumed that the plaintiff's counsel would have been able to prove the facts which he offered to prove, had he been permitted to do so. Upon this assumption, therefore, the complaint included among the alleged partners two defendants who had never been partners and who were concededly not liable. It also failed to mention some of the partners who were liable, two of whom it appeared had died prior to the commencement of the action. The question presented is whether, upon this complaint, the plaintiff could recover against the defendants who were liable upon the note. So far as the two executors were concerned, it is obvious that their joinder, under the allegation that they were partners, would not have prevented a recovery against the other defendants. The common-law rule that in an action upon an alleged joint contract the plaintiff must fail unless he establishes the joint liability of all the defendants has been changed by the Code of Civil Procedure. ( Pruyn v. Black, 21 N.Y. 300; McIntosh v. Ensign, 28 id. 169; Stedeker v. Bernard, 102 id. 327; Lawton v. Partridge, 111 A.D. 8.)
The case of McIntosh v. Ensign (supra), followed in the later case, is directly in point. There, the plaintiff had alleged the joint liability of five defendants. The proof established that only two were liable, and it was held that the plaintiff was nevertheless entitled to judgment against those two.
It follows that the dismissal of the complaint on this ground was error, for under the offer the plaintiff's proof might, conceivably, have shown that the other defendants, or some of them, were jointly liable upon the note and were the only members of the syndicate who were liable. In that event, under the authorities cited, the plaintiff would have been entitled to recover against those defendants despite the misjoinder of the others. A fair construction of the offer, however, is that the proof would have shown that all the members of the syndicate at the time the note was given, including Church and Hart, were jointly liable, and it remains to be seen whether the failure to allege in the complaint who all those members were
would have prevented a recovery. As already stated, the fact that the complaint charged too many persons as partners would not have prevented a recovery against the actual partners, and on principle it would seem clear that the fact that the complaint charged too few as partners ought not to prevent a recovery. The variance between the pleading and proof is as great in the one case as in the other. That this is the correct rule a very brief review of the authorities will show. The Code of Civil Procedure provides that where there is a defect of parties, either plaintiff or defendant, appearing on the face of the complaint, the defendant may demur. (§ 488.) If such objection does not appear on the face of the complaint, it may be taken by answer (§ 498); and if not taken by demurrer or answer, defendant is deemed to have waived it. (§ 499.) Of course, a partner is entitled, as claimed by the respondents, to have his copartners joined in an action upon a partnership liability, but it is established that in such ...