
    Elwood S. Hand, Appellant, v. Charles P. Rogers et al., Respondents.
    (City Court of New York—General Term,
    March, 1895.)
    In an action against several defendants as copartners upon a contract made by one of them in the name of the firm, where it appears that the present copartnership was formed after the making of the contract, and that at that time the copartnership consisted of the defendant who made it and another person not a party to the action, a separate judgment may be rendered against the defendant who signed the contract, and it is error to dismiss the action as against all the defendants.
    Mhklich, Oh. J., dissents.
    Appeal by the plaintiff from a judgment entered upon a .decision made by a trial judge without a jury.
    
      Gha/rles Be Han't Brower, for appellant.
    
      John Henry Hull, for respondents.
   Newburger, J.

The complaint alleges that the defendants were and still are copartners in business, and that, on or about fhe 30th day of November, 1889, they made a contract with the plaintiff whereby the plaintiff was to insert the defendants’ advertisement in a book published bv him, for which, plaintiff was to receive $205 in trade. That the plaintiff duly inserted the advertisement and demanded payment, which was refused.

■The answer was a, general.denial.

On the trial it appeared that the present copartnership was not formed until after the making of the contract sued on, and that, at the time of making the contract, the copartnership consisted of the defendant Chayles P. Rogers and- one Whitcomb.

The case was tried by the court without a jury.

At the close of the plaintiff’s case plaintiff’s counsel moved to dismiss the complaint as against all the defendants except Charles P. Rogers, and at the close of the case he moved for judgment against the defendant Charles P. Rogers, both of which motions were denied by the trial justice, who dismissed the complaint as against all the defendants, .to which ruling the plaintiff duly excepted.

It was .not denied by the defendant Charles P. Rogers that he signed the contract with the plaintiff; he simply denied that' the other defendants were his copartners at the time of making the contract.

Upon the evidence the defendant Charles. P. Rogers was, in any event, liable upon the contract.

It has been repeatedly held that, under section 1205 of the . Code, a separate judgment was authorized where a separate liability of some of the defendants was established at the trial, although the cause of action, as alleged in the complaint, was joint only. Owen v. Conner, 11 N. Y. Supp. 352; Stedeker v. Bernard, 102 N. Y. 327.

It follows that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Wyck, J., concurs.

Ehrlich, Ch. J. (dissenting).

I think that all there is to this action has been disposed of by the trial judge in conformity with the decisions of the General Term on the former appeal.

These decisions must be taken as establishing the law of the case so far as this court is concerned. 8 Misc. Rep. 79; 58 N. Y. St. Repr. 821.

I find no error, and judgment should be affirmed, with costs.

Judgment reversed and new trial granted, with costs to appellant to abide event.  