
    Sam Lapinsky, Appellant, v. Moses Colish and Sadis Colish, Individually and as Co-partners, Respondents.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Judgment — Rendition — Parties — Against one of several defendants shown liable.
    Pleading — Amendments — Amendments by leave of court—Time for amendments — Amendments at the trial — Striking out allegations of partnership where party appearing admits several liability.
    In an action to recover the price of goods alleged to have been sold and delivered to a partnership consisting of two persons, where only one of the defendants answers and ho admits on the trial that he owes the amount of plaintiff’s claim, but the partnership is not proved, it is error to deny the plaintiff’s motion to amend the summons and complaint by striking out the words “and as co-partners,” and to dismiss the complaint.
    In such case, a motion to amend the summons and complaint is not necessary, as the plaintiff is entitled to judgment against either one of the defendants who is shown to be liable.
    Appeal by the plaintiff from a judgment in favor of the defendants rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.
    Julius Blumofe, for appellant.
    Sporborg & Canter (Harold S. Fleischer, of counsel), for respondents.
   Ford, J.

Plaintiff sues for goods sold and delivered. One paragraph of his complaint alleges that the defendants are partners. The next paragraph alleges a sale and delivery of goods to the defendants. The defendant Moses Colish answered.

On the trial, plaintiff could not prove the partnership, but at the close of the plaintiff’s case defendant’s counsel admitted that Moses Colish owed $188.25, which is the amount of plaintiff’s claim. Plaintiff then moved to amend the complaint so as to allege a cause of action against Moses Oolish individually instead of against a partnership and to discontinue as against the other defendant and to amend the summons and complaint by striking out the words and as co-partners,” which motion the court took under advisement, together with defendant’s motion to dismiss at the close of the whole case. Subsequently the court dismissed the complaint.

Since the proposed amendment was not opposed on the ground of surprise such motion should have been granted. Universal Cutter Co. v. Emden, 107 N. Y. Supp. 669; Mun. Ct. Act, § 166, Langbein’s Mun. Ct. Pr. (6th ed.), 329, 300 and cases there cited.

But it was not necessary to make such a motion. Where two or more are sued as joint debtors and plaintiff fails to establish a joint liability against all, judgment may be had against one if only one is liable. Stimson v. Van Pelt, 66 Barb. 151; Knickerbocker Ice Co. v. T'heiss, 23 Misc. Rep. 625, distinguishing Hand v. Rogers, 16 Misc. Rep. 17, relied on by the defendant; Lawton v. Partridge, 111 App. Div. 8.

It is certainly going pretty far to dismiss the complaint in an action for goods sold and delivered where one of the defendants admits owing the amount sued for.

The judgment should be reversed, with costs to the appellant, and judgment entered for the plaintiff and against the defendant Hoses Oolish for the relief demanded in the complaint, with costs in the court below.

Giegerich and Hendrick, JJ., concur.

Judgment reversed, with costs to appellant, and judgment entered for plaintiff against defendant Hoses Oolish for relief demanded in complaint, with costs- in court below.  