
    Platt vs. Halen.
    An action may bo maintained in the name of one of two partners of a law firm, where the particular business respecting which the suit is brought is unifoimiy done in the name of the partner suing.
    
      A sel-off will, however, be allowed in sueli suit of a demand against the firm.
    In an action by an attorney against his client, the defendant is not allowed to raise objections * to the items of the plaintiff’s bill, if the bill has been duly taxed on notice.
    This was an action of assumpsit, tried at the Seneca circuit, in November, 1838.
    The plaintiff and L. F. Stevens, were members of a law firm, and were retained by the defendant to prosecute a *suit in chance- [ 457 ] ry. A bill ivas accordingly filed in the name of Platt alone, as solicitor, the chancery business of the firm being uniformly done in his name. The plaintiff produced a taxed bill of costs, a copy of which, previous to the taxation, was served, together' with notice of taxation, on the defendant. The defendant moved for a nonsuit, on the grounds, 1. That the proof was insufficient to sustain the action; and 2. If it was sufficient, the action should have been brought in the joint names of Platt and Stevens. The motion was denied, and the jury, under the charge of the circuit judge, found a verdict for the plaintiff. The defendant moved for a new trial.
    
      S. Stevens, for the defendant.
    
      A. Taber, for the plaintiff.
   Nelson, Ch. J.

By the Court, I am of opinion that Stevens may be regarded in the light of a dormant partner in respect to the chancery suits conducted by the firm of which he was a member ; and that the suit is well enough in the name of the plaintiff alone. The point, I think, has been heretofore decided, but it seems not to have been reported. The chancery business of the office was uniformly done in the name of Platt, as solicitor, the other partner not being known therein on the papers. Collyer on Part. 2, 3, 153. Cary on Part. 97. 3 Cowen, 85. Sutherland, J. was inclined to this opinion in Warner v. Griswold, 8 Wendell, 666, when it was made a question whether in such cases both partners could sue.

The objection urged on the argument that the suit in the name of one would exclude a set-off against the partnership, is not sound; the suit is for the benefit of the firm, and in a name by which it is represented, and a set-off would be allowed. 7 Cowen, 416.

It was not competent for the plaintiff to litigate the items of the bill on the trial. It had been regularly taxed on notice, and the remedy for the allowance of improper items was by appeal from taxation. Doug. 198. 12 Johns. R. *315. Though the bill need not now be serv- [ *458 ] ed before suit brought, the effect of a regular taxation is the 6ame as before.

New trial denied.  