
    COURT OF APPEALS.
    John Zimmerman et al., plaintiffs and respondents, agt. Prosper Erhard et al., defendants and appellants.
    Partnerships— TJse of the words “ & Oo.,” when representing the wife, not a violation of the statute — Goods sold on different days on credit constitute a separate and distinct cause of action.
    
    The statute {Laws of 1833, chap. 281) which provides that " no person shall transact business in the name of a partner not interested in his firm, and when the designation ‘ & Co.’ is used, it shall represent an actual partner or partners,” is highly penal, and the use of the words “ & Co.,” when representing the wife of such person, is not a violation of the statute. The name of the wife when so used is a real one and the words "& Co.,” when so employed, are in no sense fictitious.
    Where goods are sold on different days, each sale constitutes a separate and distinct cause of action, and the plaintiff may, at his election, bring separate actions for each, or for all of them together.
    
      Decided December, 1880.
    The plaintiffs, John and Mary Zimmerman, sued in the New York marine court to recover a bill of goods sold by them to the defendants. It appeared that the plaintiffs did business under the firm style of “ J. Zimmerman & Co.,” and the goods were sold by them in their copartnership name. Upon the trial before Mr. justice McAdam it was objected: 1. That as the plaintiffs were husband and wife, they could not and did not form a legal partnership, and that the use of the words “ & Oo.” under such circumstances was a violation of the statute- (1833, chap. 280) as construed in Swords agt. Owen (43 How. Hr., 176) and Wood agt. Erie Railroad Compcmy (8 Hun, 648). 2. That there was another action pending between the same parties for the same cause.
    The objections were overruled and judgment was directed for $1,710.49, with costs.
    The judgment having been affirmed by the general terms of the marine court and court of common pleas, the defendants (by leave of the latter court) appealed to the court of appeals.
    
      Edward Van Hess, for appellants.
    
      Thomas V. Gator, for respondents.
   Miller, J.

The defendants interpose as a defense to the plaintiff’s demand, that the plaintiffs were not copartners, and that the plaintiff John Zimmerman did business under the name of J. Zimmerman & Co.; ” that the words “ & Co.” do not represent any real party, and that the same are used in violation of chapter 281, Session Laws of 1833, which provides that no person shall transact business in the name of a partner not interested in his firm, and when the designation “ and company,” or c* & Co.,” is used, it shall represent an actual partner or partners. The defense rests upon the supposition that Mary Zimmerman, the wife of the plaintiff John Zimmerman, was intended by the words “ & Co.,” and that no partnership can exist between husband and wife, and therefore the use of the words was illegal and a violation of the statute. That plaintiffs were husband and wife is only established by the testimony of John Zimmerman that the firm was composed of himself and his wife, Mary Zimmerman. Whether Mary was the wife of John Zimmerman at the time of the sale is not shown ; nor is there any finding or request to find to that effect. But assuming the proof on this subject was sufficient, we think the use of the words “ & Co.” for the name of the wife was not a violation of the statute cited.

The provision in question is highly penal and will not be extended. It was intended to prevent the use of the name of a person not interested in a firm, and thus inducing a false credit to which it was not entitled (Wood agt. Erie Railroad Company, 72 N. Y., 196, 198). It does not apply to, and is not intended to include, the use of a real name of an actual partner, even although such partner was under a disability at the time. The use, therefore of the name of a feme covert, an infant or person of unsound mind, as one of a firm, where there was no intention to impose upon the public by obtaining undue credit, cannot be regarded as a violation of either the letter or the spirit of the statute cited. The name used in this case was a real one, and the words “ & Co.” were in no sense fictitious or unlawful within the meaning of the statute. Without considering the question whether a married woman can be a partner of her husband, it is quite obvious that such disability is not available to the defendant in this action, upon the ground set up in the defendants’ answer, that the words “ & Co.” did not represent a real party, and the answer referred to constitutes no defense to the plaintiffs’ demand.

The defense that another action was pending for the same cause of action is also without merit. The former case, for which a recovery had been had between the parties, was brought to recover the value of goods sold and delivered at a date prior to those for the recovery of the value of which this action is brought; and the proof showed that they were all sold upon a contract for a credit of four months. Under this state of facts each sale was separate and distinct, and a cause of action accrued when the time of credit expired and as the several amounts became due.

The different sales did not constitute one entire and indivisible demand, and the plaintiffs could bring separate actions for each separate sale, or for all of them together, as they saw fit. -The different demands were like several promissory notes or several .distinct trespasses, and in the nature of separate and distinct transactions, for each of which a separate action might be brought (Secor agt. Sturgis, 16 N. Y., 548, and authorities there cited; Staples agt. Goodrich, 21 Barb., 317).

The rendering of an account containing all the items does not change the nature of the contract or evince that the transactions were not separate and distinct. The cases cited to sustain the rule, that the account sued upon was entire and could not be split up so as to form the basis of separate causes of action, are only applicable where successive suits are brought for separate items of a current account or for separate installments becoming due under the same contract, and are not analogous to the facts presented in the case at bar.

There was no error, and the judgment must be affirmed.

All concur.  