
    (35 Misc. Rep. 519.)
    KIRKBRIDGE v. WILGUS.
    (Supreme Court, Special Term, New York County.
    March, 1902.)
    1, Partnership—Holder or Firm Note—Action against One Partner.
    Where the bolder oí a firm note brings suit on it against one of the partners of the firm, and where the judgment recovered remains unsatisfied, he may maintain suit against the other partner for the unpaid balance.
    3. Same.
    A complaint, In an action against one partner on a firm note after an action against the other partner and judgment, which explains why the action was so brought, is not demurrable.
    3. Frivolous Demurrer.
    A demurrer is frivolous only when it is clearly bad on its face, and requires no argument.
    Action by George B. Kirkbridge against Augustus B. Wilgus. Judgment for plaintiff on a frivolous demurrer to the complaint. Re-argument denied.
    W. L. Sawyer, for the motion.
    W. Brauns, opposed.
   GILDERSLEEVE, J.

The application is for a reargument of the motion for judgment on a demurrer to the complaint as frivolous. The rule undoubtedly is that unless the demurrer is clearly bad on its face, and no argument is needed to demonstrate its frivolity, it should not be overruled as frivolous. See Bank v. Kroder, 13 Misc. Rep. 192, 34 N. Y. Supp. 133; Hopper v. Ersley, 3 Misc. Rep. 340, 22 N. Y. Supp. 1050. Upon examination of the pleadings on this motion, it seemed to me that the demurrer in the case at bar came within the requirements of this rule, and I therefore granted the motion. However, as defendant applies for a reargument, I feel called upon to state my reasons for this decision.

The demurrer herein is based on an alleged defect of parties defendant. The complaint alleges that defendant Wilgus was in partnership with one Lindsay, and that said firm made two promissory notes, set forth in the complaint, in favor of plaintiff, upon which notes the plaintiff’s cause of action is based. Although the contract was a copartnership obligation, only one of the two partners is made defendant herein, and the reason for not bringing in the other partner is stated in the complaint to be that a judgment has already been obtained on this demand (i. e., these notes) against the other partner, upon which judgment only a very small part has been paid, to wit, $50, which sum was partly for costs; and the complaint states that the rest, viz., $30.46, may be credited toward interest on the unpaid claim. The reason why Wilgus was not made a party in the suit against Lindsay is also stated.

Section 1946 of the Code provides that;

“Where, for any cause, one or more partners have not been joined as defendants in an action upon a partnership liability, and final judgment has been taken against the persons made defendants therein, the plaintiff, if the judgment remains unsatisfied, may maintain a separate action upon the same demand, against each omitted partner, setting forth in the complaint the facts specified in this section, as well as the facts constituting his cause of action upon the demand.”

The plaintiff in the case at bar, as appears from the complaint, has closely followed the practice indicated by the above-quoted section of the Code. For the reason that this fact appeared on the face of the complaint, which sets forth a good cause of action, I concluded that the demurrer was bad on its face, and granted the motion, as I have above stated. The defendant’s counsel refers me to the cases of Polack v. Runkel, 56 App. Div. 366, 67 N. Y. Supp. 753, and Oakes v. Oakes, 55 App. Div. 576, 67 N. Y. Supp. 427. The first holds that “where one of two causes of action set out in a complaint in an action brought against three defendants as members of a firm, and also against one of them individually, does not relate to the latter in his individual capacity, his demurrer to such cause of action should be sustained, and that there is a substantial difference between a judgment entered against a person sued individually and a judgment rendered against the same person sued as a member of a copartnership.” The state of facts in that case differs largely from those in the case at bar, and the doctrine there laid down has little direct bearing upon this motion. In the case of Oakes v. Oakes, Mr. Justice Patterson says that, if the question were directly presented, he “might disapprove of the practice of applying by special motion for judgment upon a pleading at special term, instead of awaiting a trial of the issues of law or of fact in the ordinary manner, and in the appropriate branch of the court.” Section 537 of the Code, however, provides that if a demurrer, answer, or reply is frivolous, the party aggrieved thereby may apply to the court, or to a judge of the court, for judgment thereon. The plaintiff, therefore, was well within his legal right in making this motion, and the court is bound to act on such motion. I must deny the application for a reargument.

Application for a reargument denied.  