
    Hiram Berkey v. George B. Judd, et al.
    
    The plaintiff sues the defendants as surviving partners of the firm of J. W. & Go., and does not pray for, or seek individual relief against either, Held: that a portion of the complaint charging- one of the defendants with having received and retained money belonging to a firm, of which the plaintiff, the defendants and others had been members, was properly stricken out as immaterial.
    It appears from tlie complaint that plaintiff was a member of the firm of Judd, Walker & Co., composed of the plaintiff, the said defendants and one Albert H. Judd; that said firm was dissolved, and plaintiff sold out his interest therein to the other members of the firm, who continued the business under the same firm name; that Albert II. Judd is now deceased. Plaintiff brings his action against said defendants as surviving partners of said last named firm, and demands judgment against them for a sum specified, and for other relief, but does not ask for any separate judgment or relief against either defendant. Plaintiff states in his complaint, among other things, that certain real estate belongingto the first mentioned firm, was sold by said firm before its dissolution, and alleges, “ that the purchase price of said lands was received by the defendant, Orange Walker, at the time of said sales, but that he did not pay nor account for the same, nor any part thereof, to said partnership of which this plaintiff was a member.” A motion was made, in the District Court for Washington County, to strike out that portion of tlie complaint above quoted, wbicb was granted, and from tbe order granting tbe same, tbe plaintiff appeals to tbis Court.
    Cornman and Stickney, for Appellants.
    Tbe Com-t below erred in allowing tbe motion of respondents to strike out part of complaint, for tbe reason that tbe allegations so stricken out were material and relevant, and contained statement of facts wbicb affect tbe amount wbicb tbe appellant is entitled to recover from respondents. Chase vs. Garvin,, 1 App., 211; Root vs. Foster, 9 How. Pr. R., 37.
    W. M. McClubr, for Respondents.
    I. —Tbe clause stricken out charges nothing against tbe defendants, nor even against tbe firm of Judd, Walker & Co.; it is tbe individual act or delinquency of but one of tbe defendants that is alleged, and not affecting tbe other defendant, of course cannot be litigated in tbis action.
    II. —Tbe allegation is wholly immaterial. If denied by defendants, evidence to support it would not be admissible; and were it proved upon tbe trial, tbe fact could have no influence, and would be entitled to no consideration upon any question involved in tbe cause of action in wbicb tbe allegation occurs.
   By the Court.

Wilson, Ch. J.

The defendants are sued as surviving partners of tbe firm of Judd, Walker & Co. No separate relief being prayed for, or sought, no judgment can be rendered against either of tbe parties in bis individual capacity. Tbe plaintiff does not here sue for the debts due tbe old firm of Judd, Walker & Co., of wbicb be was a member, nor could be maintain such suit in bis individual capacity without joining as plaintiffs or defendants tlie other members of said firm. Nor can the defendants as surviving members of the second firm of Judd, Walker & Co., be held liable for the individual debts or delinquencies of either member of said firm. We are unable to see, therefore, that the matter stricken from the complaint is material in any point of view. The order appealed from is affirmed.  