
    Amsterdam Electric Light, Heat and Power Company, Appellant, v. Jacob C. Rayher, Respondent.
    
      Municipal Court of Hew York city — action on a partnership obligation —• an objection to a nonjoinder of all the pu/rtners is necessary — it must be raised by a plea in abatement.
    
    In an action upon a partnership obligation the failure to make all the partners parties defendant constitutes a non-joinder; but if no objection be made that all are not made parties, judgment may properly be entered against the partners who are made parties.
    Where the action is brought in the Municipal Court of the city Of New York, . which is governed by the rules of pleading applicable to Justices’ Courts (Laws of 1897, chap. 378, § 1369), the objection of non-joinder can only be raised by a plea in abatement and is not available on a motion for a nonsuit.
    Appeal by the plaintiff, the Amsterdam Electric Light, Heat'and Power Company, from a judgment of the Municipal Court of the •city of Hew York, rendered on the 30th day of January, 1899* upon the dismissal of the complaint by direction of the. court after a trial before the court without-a jury.
    
      L. Bedell Grant, for the appellant.
    
      K. C. McDonald, for the respondent.
   Hatch, J.:

The contract which furnishes the basis of this action, and which was made a part of the complaint, was executed by Frey & Rayher. The liability of these parties was, therefore, joint, and the action, properly brought, should have been against both. The plaintiff made Rayher only a party defendant. He answered admitting the allegations of the complaint averring liability against him alone. At the conclusion of the proof, which established a joint liability, the defendant- moved for a nonsuit based upon such ground. The court granted the same and dismissed the complaint. Error is predicated of this ruling. The liability of a partner is absolute for the whole amount of the partnership debt, and an execution, joint in form, may be enforced against the property'of one only. (Judd Linseed & Sperm Oil Co. v. Hubbell, 76 N. Y. 543.) While the failure to join a copartner constitutes a non-joinder of parties, yet if no objection, be made judgment may properly pass against the partner made a party. (Decker v. Kitchen, 2 Civ. Proc. Rep. 111.) This action was brought in the Municipal Court of the city of Hew York, and by section 1369 of the Greater Hew York charter (Laws of 1897, chap. 378) the same rules of pleading are made applicable to that court as obtain in a court óf a justice of the ¡Deace. In such court how must the non-joinder of parties plaintiff be raised ? This is the question requiring answer.. Before any of the Codes were adopted, advantage could only be taken of the omission to join persons jointly liable in an action by plea in abatement (Bradish v. Schenck, 8 Johns. 151), and a nonsuit in the absence of such plea was improper. (Brotherson v. Hodges, 6 Johns. 108.) After the adoption of the Code of Procedure it was held that if the defect of parties appeared upon the face of the complaint it was available upon a motion for nonsuit. (Rice v. Hollenbeck, 19 Barb. 664.) This ruling proceedéd upon the ground that as the former plea in abatement was to be first tried and was waived if the pleading was to the merits, and the Code having provided that the answer should be a denial with notice of facts constituting a defense, that as the fact appeared upon the face of the complaint a notice would be superfluous and the defect could be made available under the denial upon a motion for nonsuit. The direct contrary was held in Abbe v. Clark (31 Barb. 238). Ho mention was made of the Bice case in the latter case, but its ruling was based upon Zabriskie v. Smith (13 N. Y. 322), and upon a construction of the Code provision which was the subject of review in the Rice case. As to the authority the case arose in a court of record and the pleading was always different in this respect, under the Code, from that applicable to Justices’ Courts. As to the construction of the Code provision thé reasoning and result are' directly antagonistic. The later decision seems, both in reason and by authority, to be the best supported, for, as Mi'- Justice Learned pointed out in Frazier v. Gibson (15 Hun, 37), the ruling which nonsuited the plaintiff after he had proved a cause of action was inconsistent because, if he had a cause of action which he proved, he should prevail; and the court there reached the conclusion that the defect of non-joinder must be taken by answer! or it would be waived. . Under the section of the Code as it existed when the Rice case was decided, notice only was to be given of facts constituting a defense, but as the defendant had notice of the defect when he pleaded, and as a good cause of action was stated if the defect was waived, it would seem to work no harsh result to hold that the defendant, by failing "to give the notice of intention to raise the question, thereby intended to waive it and litigate the questions" involved upon the merits. If it were otherwise under the present Code (§ 2938), the answer is required to set forth the new matter constituting the defense.- The conclusion would, therefore, seem to be that at common law and under the old Code, non-joinder of parties in a Justice’s Court must be presented by plea in abatement or it will be deemed' to be waived.

We are now to see wliat the rule is under the present Code. By section 2935 the" pleadings of the defendant may be an answer or á demurrer. The answer may be a denial or new mátter or both. (§ 2938.) The demurrer is .authorized when the complaint is not sufficiently explicit t-o be understood, or where it does not state facts sufficient to constitute a cause of action. So far as the demurrer is concerned its grounds aré the same as were contained in the old Code (§ 64, subd. 6). Mon-joinder of parties is not made under the present practice a ground of demurrer, and it is beyond dispute that the present pleading was sufficiently explicit to be understood, and stated a cause of action. Mo demurrer could, therefore, be successfully interposed. As there could be no demurrer, and no plea in abatement' was interposed, it would seem that the objection was waived. We should deem this all that is necessary, to be said upon / this subject were it not for thp fact that. Mr. Waite in his Law and Practice, Justices’ Courts (Vol. 3, p. 80), states that the Code has not attemjited to define what defenses may be proven under a general denial, and that no Code provision requires a defect of parties to be specially pleaded. The inference which arises is that the defect may be raised even though no pleading presents it. It is clear that, as the Code has not assumed to add any force to a general denial beyond that which it possessed at common law, it possesses.no greater efficacy now than it did then, and as it was held insufficient for such purposes then, so it should be now. The Code only changes the practice of former times so far as its terms indicate, either by express provision or by necessary or fair construction. If the rule which required a plea in abatement was intended to be changed by the Code it must have so said, else the rule will remain the same; and as the Code is silent in this respect we must conclude that -the former practice was not changed. The cases cited in the text of Mr. Waite which uphold the right to raise non-joinder of parties by motion for nonsuit must be held to be overruled by the later decisions which we have cited, and by the present Code provisions.

It follows from these views that the motion for nonsuit was improperly granted, for which reason the judgment should be reversed.

All concurred.

Judgment reversed and new trial ordered to be had in the same district in which the action was tried, costs to abide the event.  