
    Morris Grossman, Appellant, v. Henry Lieb, Respondent.
    Second Department,
    May 1, 1908.
    Pleading — goods sold and delivered — use of trade name — erroneous • nonsuit.
    A complaint to recover for goods sold and delivered should not be dismissed merely because the plaintiff though suing in his individual name proved that he was doing business under a trade name, if there be no evidence that the plaintiff was a corporation or partnership.
    
      Appeal by the plaintiff, Morris Grossman, from a judgment of the Municipal Court of the city of New York in favor of the defendant dismissing the complaint.
    
      Herman S. JBaehraeh, for the appellant.
    
      Max E. lehma/n, for the respondent.
   Hooker, J..:

Tiie evidence on the part of the plaintiff shows that he was engaged in the plumbing business in the city of Brooklyn under the name of the Williamsburgh Plumbing Supply Company; that the defendant was also engaged in the plumbing business and that the defendant by written order purchased of the plaintiff plumbing goods to the amount of $282.40 ; that the goods were delivered to the defendant’s place of business ; that thereafter defendant paid to plaintiff $100, leaving a balance due ; that defendant had repeatedly promised to pay this alleged balance. The complaint was oral, the plaintiff declaring for goods sold and delivered. The answer was an oral general denial. On this state of proof and record, the plaintiff’s complaint was dismissed. A clear case entitling the plaintiff to recover was shown by the evidence, and it was error for the trial justice to dismiss the complaint.

It was not necessary that the summons or the complaint should say that the plaintiff was doing business under the name of the Williarasburgh Plumbing Supply Company. It was enough that the complaint alleged that he sold the goods, and he could make the allegation good on the trial in any way he could. There is no evidence that the company is a corporation or a partnership, and that cannot be presumed. The evidence is that the plaintiff did business under that name.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Woodward, Jenks, Gatnor and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  