Opinion
April, 1904.
Henry A. Rubino, for the appellant.
W.S. Taylor, for the respondent.
This is an appeal by the defendant from a judgment of the Municipal Court, awarding to the plaintiff the full amount of the plaintiff's claim. The pleadings were oral, and the plaintiff "complained of defendant for goods sold and delivered in the sum of $163.50." The answer is a general denial. Upon the trial the plaintiff's evidence tended to show that the goods mentioned in the complaint were sold to a partnership, of which the defendant was a member, and not to the defendant individually. While the claim is made by the plaintiff that there is evidence from which the justice might have found that the defendant purchased the goods in his individual capacity, we cannot concur in that view. The substance of the conversations between the parties and the copartner of the defendant, and all of the circumstances surrounding the sale of the goods, preclude the theory that the sale was to the defendant individually. The judgment cannot be sustained under the authority of New York Fastener Co. v. Wilatus ( 65 App. Div. 467), which case is directly in point, and a further discussion of the legal question involved in this case is, therefore, unnecessary.
The plaintiff's claim that the defendant has waived a non-joinder of his copartner, and that, therefore, the judgment must be affirmed, is without merit. While it is no doubt true that the non-joinder of necessary parties must be raised in the Municipal Court by answer or be deemed to be waived ( Amsterdam Electric Light Co. v. Rayher, 43 App. Div. 602), it is sufficient to note that the complaint alleged an indebtedness of an individual defendant and made no mention of a partnership relation. Had the plaintiff seen fit to amend his pleading so as to allege a sale to the partnership, of which the defendant was a member, and thereupon the defendant had not amended his answer by raising the question of non-joinder, the plaintiff's contention might prevail, but the plaintiff distinctly refused to adopt the suggestion made upon the trial that he amend his complaint in that respect, and the defendant by his general denial to the complaint, as it stood, raised an issue that the goods were not sold to him. All the proof substantiated the defendant's claim, and upon the authority of New York Fastener Co. v. Wilatus ( supra), the judgment of the Municipal Court must be reversed.
Judgment reversed, with costs.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.