
    The New York Fastener Company, Respondent, v. Edward Wilatus, Appellant.
    
      Complaint alleging a sale to the defendant individually—proof that it was to defendant’s Arm—an a/menament that the defendant was “the sole surviving member of the firm” will not sustain a judgment against him — nor will Ms assumption of its debts.
    
    A complaint in an action alleged that goods had been sold and delivered to the defendant individually while he was trading under the firm name of Wilatus & Sander. The defendant interposed an answer alleging that there had been a firm doing business under the name of Wilatus & Sander, and that the goods mentioned in the complaint were sold to that firm and not to the defendant individually. At the opening of the trial the plaintiff obtained leave to amend the complaint so as to allege that the defendant was “ the sole surviving member of the firm,” but no other amendment was made, and the evidence given supported the averments of the answer.
    
      Held, that a judgment should not have been rendered in favor of the plaintiff;
    That the fact that the defendant admitted that he assumed the debts of the firm of Wilatus & Sander at the time of its dissolution, would not support the judgment.
    
      Appeal by the defendant, Edward Wilatus, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 29th day of April, 1901, upon the decision of the court.
    
      Edwin B. Fiske, for the appellant.
    
      F. E. Anderson, for the respondent.
   Willard Bartlett, J. :

In this action the plaintiff corporation sought to recover of the defendant a balance alleged to be due for goods sold and delivered to him individually, but trading under the firm name of Wilatus & Sander. The answer set up several defenses, one of which was that Wilatus & Sander had been copartners, and that the goods mentioned in the complaint were sold to the firm and not to the defendant Wilatus individually.

At the opening of the trial the counsel for the plaintiff asked leave to amend the complaint so as to allege that the defendant was “ the sole surviving member of the firm,” and this motion was granted. It is to be observed, however, that there was no other amendment, so that the trial proceeded upon a complaint alleging that' the defendant was the sole surviving member of the firm of Wilatus & Sander, but containing only allegations to the effect that Wilatus was the individual purchaser of the goods, and nothing to indicate that they were bought by the copartnership.

After proving the incorporation of the New York Fastener Company, counsel for the plaintiff offered in evidence the answer of the defendant Wilatus and placed said defendant upon the stand as a witness against himself. He testified that the facts stated in the answer were true; that the firm of Wilatus & Sander was dissolved July 5, 1900 ; that he bought out his partner and assumed all the debts, and that all the assets came into his possession. He further stated that he was now carrying on the business; that his partner had purchased the goods in question from the plaintiff, and at the time had authority to act for the witness.

Upon this evidence the court rendered judgment in favor of the plaintiff for the amount of its claim.

I do not see how this judgment can be sustained. The complaint alleged only an individual liability. The answer set up that whatever liability existed was joint. The proof offered in behalf of the plaintiff supported the averments of the answer in this respect; it established a. purchase by the copartnership and no transaction whatever with tlie defendant as an individual. It may be that the counsel for the plaintiff, in the oral amendment which he procured to the complaint at the commencement of the trial, intended to make his pleading broad enough to allege a firm liability ; but the record does not show that he succeeded in changing, the complaint sufficiently for this purpose. Indeed, the return is so obscure that it is exceedingly difficult to ascertain precisely what issue or issues were really passed upon by the court below, although there is enough to indicate that the judgment ought not to stand.

It is contended that inasmuch as the defendant admits that he assumed the debts of the firm of Wilatus & Sander at the time of its dissolution, he can be held liable upon the doctrine of Lawrence v. Fox (20 N. Y. 268); but the courts have refused to extend the principle upon which that case was decided to such an agreement as this. (Merrill v. Green, 55 N. Y. 270.) In the case cited it was held that where on the dissolution of a firm one partner executed to another a bond conditioned for the payment by the partner executing it of all the firm debts, a firm creditor could not maintain an action upon the bond to recover of the obligor his claim against the firm.

Counsel for the respondent also refers to section 1946 of the Code of Civil Procedure as authorizing the judgment against the defendant herein. That section, however, refers only to an action upon a partnership liability; ” whereas, as I have endeavored to show, the complaint in this action negatives the idea of any partnership liability, and is framed upon the theory that the defendant was the individual purchaser of the goods.

The judgment should be reversed and a new trial ordered.

Goodrich, P. J., Hirsohberg, Jenks and Sewell, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  