
    REUBEN T. POLLARD and STEPHEN PETTUS, v. WILLIAM BRADY.
    I. Fictitious names. Laws 1833, chap. 281; Laws 1854, chap. 400.
    1. Transacting business under.—Statute against.
    (a) What dobs hot ball within purview op.
    A note made in a transaction isolated and separate from the general business carried on under a name the use of which is prohibited by a statute, does not fall within the purview of the act; and the fact that the transaction was carried on in such name, and the payee of the note was designated by such name, constitutes no defense.
    
      Before Sedgwick, Ch. J., and Truax, J.
    
      Decided April 4, 1881.
    Exceptions ordered to be heard in first instance at general term, complaint having been dismissed
    The complaint averred that “ at all the times, hereinafter mentioned they were and still are copartners, doing business in the city of New York, under the firm name or style of Pollard, Pettus &Co.;” that defendant duly made, executed for value received, delivered to the plaintiffs, his certain promissory note, as follows:
    “New York, January 3, 1877.
    “Two years after date I promise to pay to the order of Pollard, Pettus & Co. $5000, &c. &c.”
    After other allegations it demanded judgment for tbhe amount of the note.
    Among other defenses, the answer alleged that at the time, &c., all the alleged transactions, including the delivery to and receipt by the plaintiffs, of the said note, were unlawfully made by the plaintiffs, in carrying on and transacting business, under the firm name and designation of Pollard, Pettus & Co., and that the designation “ & Co.” did not then and there represent an actual partner.
    The only question upon the trial was whether the transaction in which the note was taken was not in violation of section 42, 3 M. S. (5 ed.) 978: “ No person shall hereafter transact business in the name of a partner not interested in his firm, and where the designation ‘and company ’ or ‘& Co.’ is used, it shall represent an actual partner or partners.”
    The testimony showed the following facts. In 1874, the plaintiff and Thomas F. Pettus, composed a firm, which was styled Pollard, Pettus & Co. In that year, the defendant agreed in writing to sell to Pollard, Pettus & Co., certain piece of real estate in Texas, which the contract stated was now deeded to Messrs. Woodward, Stillman & Co. as collateral security, and certain other pieces of real estate.
    Thomas F. Pettus died July 6, 1875. The surviving members of the firm, on August 4, 1875, had a transaction, the nature of which is indicated by the following receipt signed by the defendant:
    “ New York, August 4, 1875.
    ‘ ‘ Received of Messrs. Pollard, Pettus & Co., 400 shares of Houston City R. R. stock, out of the proceeds of a loan on which I promise to liquidate a debt due Woodward & Stillman and make a clear title to the said Pollard, Pettus & Co., to a certain 80 blocks of land, &c., as per my title bond, executed to them in 1874.”
    January 3, 1877, the defendant gave the note in question, and the plaintiffs signed, by the name Pollard, Pettus & Co., an agreement to the following effect, that whereas Pollard, Pettus & Co. now hold two contracts,, being those above referred to, and whereas said Brady has not yet completed said contracts and has executed, the said promissory note, it is agreed that said Pollard, Pettus & Co., at any time before final settlement, shall have the right to elect to receive either payment of the note or a conveyance of the lands, it being understood that according to the election of the plaintiffs, the defendant should be released from the alternative obligation.
    One of the plaintiffs testified, that at the time of receiving the note, the plaintiffs were doing a commission business in the city of New York under the firm name of Pollard, Pettus & Co., and continued the business under that name to the time of testifying.
    He also testified that part of the business of the present firm consisted in liquidating the affairs of the former firm of Pollard, Pettus & Co. of which Mr. Thomas-F. Pettus was a member, and that the present firm took. the note in the course of the liquidation of the affairs, of the former firm.
    On motion, the complaint was dismissed on the ground that the note was taken by the plaintiffs in the name of Pollard, Pettus & Co. in violation of the statute.
    Exceptions were ordered to be heard in first instance, at general term.
    
      Richard H. Barker, attorney, and Frederick H. Man, of counsel, for plaintiffs.
    
      Harry Wilbur, attorney, and of counsel, for defendant.
   By the Court.—Sedgwick, Ch. J.

I am of opinion, that so far as the transaction went in fact, in the mere taking of the note, the case of Wood v. Erie Railway Company (72 N. Y. 196), requires us to hold, that it was not in violation of the statute.

In the case cited, the plaintiffs were doing business-under a firm name, that was in violation of the^tatute. In that firm name he bought a carriage. It was delivered by him to the defendant at Buffalo to be transported to New York and to be delivered thereto plaintiff. It was marked by the firm name. The action was-for injuries to the carriage, done in the course of transportation. The court of appeals held that “ the shipping and receiving of carriages was not the business of the plaintiff, but merely incidental to the business of manufacturing and dealing in this species of property.” In this case it was a separate and distinct matter^ outside of the plaintiffs’ ordinary business, and in no wise a violation of the statute. The court also considered that to invalidate a particular transaction, it must be within the mischief which it was the object of the statute to remedy ; and that that mischief was the effect of representing, by a fifm name, that the firm had, as. partners, some one, whose name was not disclosed by the firm name, and the tendency therefrom to induce credit upon the representation.

In the present case, the note was isolated and separated from the business of buying and selling goods on commission, which was the general business of the plaintiffs. It had no connection with that business, directly or indirectly. It was "taken in the process of adjusting the rights of the parties, in a contract for the convey and of real estate. The scope of the transaction was of a nature that would not bring the defendant within any of the consequences that the statute was pointed against.

If the transaction was not illegal, the remaining question, whether the plaintiffs could show that they were the persons designated by the name of the payee in the note, to wit, Pollard, Pettus & Co., should be answered in favor of the plaintiff.

Exceptions sustained, order reversed and new, trial ordered, with costs of the motion to the plaintiff to abide the event.

Truax, J., concurred.  