
    Yamato Trading Company, App’lt, v. Leo W. Hoexter, Impleaded, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.
    
    •Costs—Dismissal of complaint because of infancy—Not allowed as MATTER OF COURSE—CODE ClV. Pito., g 3229.
    Where a person who is engaged in business as a co-partner with another and is ostensibly competent to carry it on, incurs in form the usual liabilities appertaining to it, and escapes that liability by his infancy, it is not a just exercise of the discretion given to the court in Code Civ Pro., % 3229, to allow him to recover costs on the dismissal of the complaint as to him. after having enjoyed the advantages of the purchase of the property.
    Appeal from a judgment recovered on the verdict of a jury in favor of the defendant, and from an order making him seventy-five dollars extra allowance for costs.
    
      Alfred Taylor, for app’lt; Blumenstiel & Hirsch, for resp’t.
   Daniels, J.

The action was Drought to recover for goods sold and delivered by the plaintiff to the firm of A. Hoexter -& Co. The defendant by his answer admitted himself to be a partner with Augustus Hoexter, and also with Henry W. Strauss who was a special partner in the firm.

But as a defense to his liability for the price of the goods he alleged in his behalf that he was a minor under the age of twenty-one years, and that fact was proved upon the trial by evidence justifying the court in directing a verdict in his favor. As to the other general partner a verdict was recovered against him for the price of the goods, and costs together with the allowance were adjusted and recovered by the judgment in favor of the defendant Leo H. Hoexter. In his defense he appeared by attorney and not by guardian as that was required to be done in the regular course of an action against him as an infant. But so far as judgment was recovered by him relieving him from liability upon the plaintiff’s demand it cannot be disturbed although irregularly obtained. But under section 3229 of the Code of Civil Procedure, he was not entitled to costs as a matter of course, but- that depended upon a special application to the court in which costs could be withheld or allowed according to its-sound discretion. But where a person who is engaged in business as a co-partner with another, and is ostensibly competent to carry it on, incurs in form the usual liabilities appertaining to it, and escapes that liability by his infancy, it does not seem to be a just exercise of discretion to allow him to recover costs after having enjoyed the advantages of the purchase of the property. "While infancy was a. legal defense to the action its successful interposition was not entitled to be rewarded in this manner. A person in trade with another as a co-partner is held out as competent to engage in and transact the business appertaining to the firm. 3 by reason of his immature years he is not in that condition and avoids the firm indebtedness by means of that circumstance, fair dealing and a reasonable execution of the law require that he should be satisfied with that measure of success without burdening the party with whom he and his partner have dealt by loading it with the expenses of the litigation required to ascertain the truth of the fact relied upon to exonerate such debtor from liability. It was a fact peculiarly within the knowledge of this defendant and the members of his family, and of which the plaintiff and its agents do not appear to have been aware. And it did no more than the circumstances required in putting the defendant to proof of his inability to bind himself by reason of his infancy.

So far as the judgment awards costs and the order directed an additional allowance they should be reversed, and as modified in that manner the residue of the judgment should be affirmed, without costs of the appeal to either party.

Van Brunt, P. J., and Brady, J., concur.  