
    Melville M. Merrill, Respondent, v. George R. Blanchard, Appellant, Impleaded with Others.
    
      Partnership—a liability survives against a surviving partner — representatives of deceased pm'tners need not be joined, unless the survivor is insolvent—a subsequent dissolution of the firm does not affect third pm'ties — one wrongfully dischm'ged need not allege that he tried to obtain other employment.
    
    In an action brought against George R. Blanchard, Rush W. Bissell and Eaton N. Erisbee, as co-partners upon a co-partnership liability, Prisbee was never served, and both he and Bissell died before the trial, and the action was not continued against the personal representatives of Prisbee after his death.
    The defendant George R. Blanchard moved, at the close of the trial, to dismiss the complaint upon the ground that Prisbee was never served, and that the action was not continued against his personal representatives.
    
      Held, that such motion was properly denied;
    That the partnership liability survived against George R. Blanchard, the sole surviving partner, and that if it had been necessary to bring in the personal representative of the deceased partners, a motion to that effect should have been made either before or at the opening of the trial, and that the objection came too late when made at the close of the case;'
    That the personal representatives were neither proper nor necessary parties, except in cases where the surviving partner was insolvent.
    The causes of action were upon a promissory note given by the firm, and also for work, labor and services rendered to the firm at an agreed compensation, and, further, .for the breach of their written contract of March 33,1885, employing the plaintiff for a term of five years at §150 a month.
    The defendant George R. Blanchard testified that he became a member of the firm before March 33, 1885, and that he retired in the fall of the same year. The plaintiff testified that he never received any notice of the dissolution of the firm before the contract was made employing the plaintiff, but that Prisbee told him in the fall of 1885 that Blanchard had retired.
    
      Held, that 'the mere fact of dissolution could have no effect upon the rights of the plaintiff, a third person, and that, therefore, his knowledge of the fact of dissolution was immaterial.
    Upon the question of damages under the contract.of employment, the plaintiff testified that he did not earn any money at all by any labor from April 1,1887, until 1890, and that he did not try to do anything, except to put himself in the way of the firm to collect what they ought to pay him and to do whatever they put him to do, and that he was kept there and held subject to their dictation.
    
      Held, that notwithstanding the fact that the plaintiff had failed to allege the fact that he had used reasonable diligence to obtain other employment, in reduction of the damages, the court properly denied the .defendant’s claim that this failure precluded the plaintiff from giving any testimony bearing upon the cause of action;
    That the plaintiff was not bound to allege affirmatively that he had tried to find other employment and could not, but that the burden of proof was Upon the . defendant to show that the plaintiff had .found similar employment elsewhere or might have done so, oi' that other similar employment had been offered to him and had been declined by him.
    Appeal by the defendant, Greorge R. Blanchard, from a judgment of the Supreme Court in favor of the plaintiff, entered in the ■office of the clerk of the county of New York on the 18th day of March, 1896, upon the'verdict of a jury rendered by direction of the court. ■ '
    The action was brought against Greorge R, Blanchard, Rush W. Bissell and Eaton N. Frisbie, as Co-partners, composing the firm of Frisbie, Bissell & Co., for. a co-partnership liability, and the two latter having died by the time the cause was reached for trial, the action was continued and tried as .against this defendant. Recovery .was sought upon three causes of action(1). For breach of contract in failing to pay a certain promissory note for $5,000 and interest executed by said firm, dated March 23, 1885, payable one year from date, save that the complaint alleged payment of $1,211 on accorint. (2) For work, labor and services rendered to the defendants at their request between June 1, 1886, and April 1, 1887, at an agreed compensation of $150 a month. ' (3)' For breach of' a written contract of employment of the plaintiff for five years from March 23, 1885, the date of the contract, at a stipulated sum of $150 per month.,
    
      William, M. Safford, for the appellant.
    
      E. W. Tyler and Edward A. Hibbard, for the respondent.
   O’Brien, J.:

The first position of the appellant is,'that his motion at the end of the case to dismiss the complaint should have been granted upon the ground that, though Easton N. Frisbie, one of the partners, was made a party, he was never served with a summons, and upon his death the action was not continued against his personal representatives. It is the rule that in an action against partners all should be made defendants; and if the case had been reached for trial and it appeared that necessary parties had not been sued and served, and the objection had then been made that the action was not at issue as to all- the parties, it would undoubtedly have been held until the proper parties were served and issue as to them joined, so that there could be a complete disposition of the rights of the parties had in that one action. Here, however, it appeared at the close of the case when the objection was made that, although joined, Frisbie was never served and died before the trial was had. The cause of action survived against the sole surviving partner (§ 755, Code Civ. Proc.), and unless the court directed otherwise, the suit may proceed against the defendant served. (§ 1932, Code Civ. Proc.) If the personal representatives of the deceased partners were proper -or necessary parties either before or at the opening of the trial, a motion should have been made to bring them in, and it was too late to raise such an objection at the close of the case.

Ap&rt from this .there is the underlying question as to whether, had such a motion been properly made, the personal representatives were proper or necessary parties. In First Nat. Bank v. Lenk (32 N. Y. St. Repr. 192) it was said, the rule is well established that where one of two or more joint debtors die, his personal representatives should not be joined in an action with the survivors, except upon the allegation of the insolvency of the survivors. We see no reason why this rule does not apply to the case of the death of a joint debtor pending the action.” (See, also, Hauck v. Craighead, 67 N. Y. 432; Richter v. Poppenhausen, 42 id. 373; Barnes v. Brown, 130 id. 372; Voorhis v. Childs' Executor, 17 id. 354.)

These cases we think dispose of appellant’s contention as to the necessity for bringing in the representatives of deceased partners, because there was neither allegation nor proof that the defendant, who was the sole surviving partner, was insolvent.

If the testimony would justify the inference that at the time the contract was made which is the basis of the second and third .causes of action, the plaintiff knew that Blanchard was not a member of the firm, Blanchard would not be liable, even though the contract was made by the partnership.

The plaintiff testifies that he never received any notification from Mr. Blanchard that he had retired from the firm, and never received any notice from Frisbie, Bissell & Co.’s office of the dissolution of the firm, but that he inquired of Mr. .Frisbie, and he told him some time in the fall of 1885 that; Mr. Blanchard had retired. . Mr. Blanchard testified that he became a member of the firm he thought before March twenty-third, and retired some timé in the fall of the same year. What year he does not say, but the inference would be that it was .1885. But the contract which is the basis of the second and third causes of action was made in March, 1885, when concededly defendant was a member of the firm. Under it he performed services until April, 1887, for. which he was paid in part and sues here for the balance. Having been prevented from rendering, or not being required to render, further services, he demands damages for breach of the contract for the remainder of the term of the contract. It will thus be seen that the second and third causes of action are based on the Same written contract -under which services were rendered for part of the term, and for the balance of the term no services were rendered.

It is insisted, however, that as,-plaintiff knew after the contract was made that the defendant retired from the firm of Frisbie, Bissell & Co., he is not liable for services- rendered or -damages accruing subsequent thereto. If we assumed that it was established that defendant so relied and plaintiff knew it, this, in no way, would alter his obligations to plaintiff under the contract. This precise question was recently discussed and disposed' of in U. S. Nat. Bank v. Underwood (2 App. Div. 345), wherein it was said : “ The mere fact of dissolution has no- effect upon the rights of third parties, It is said) in. Parsons on Partnership, that no dissolution of any kind affects the rights of third parties who have had dealings with the partnership without their consent. This is the universal, rule without any exception whatever. * * * , As the fact of the dissolution has no effect upon the rights of third parties, of course the knowledge that-there has been dissolution is equally unimportant.”

With respect to the amount of damages, the plaintiff, on cross-examination, testified as follows: “ I did not earn any money at all by any labor from April 1st, 1887, until 1890. * * * Q. Did you try to do anything \ A. Nothing, except to put myself in the-way of the firm of Frisbie, Bissell & Co. to collect what they ought to pay me, and do whatever they put me to do. I was kept here, and I was-held subject to'their dictation.” The appellant invokes the well-established law, that a servant who sues for a. breach of contract, in order to recover the full amount, must use reasonable diligence to obtain other employment and thus reduce the damages. This rule, he insists, supports his exception to the court’s denial his motion to exclude all evidence upon the third cause of action, because plaintiff did not allege that he used reasonable diligence to-obtain other employment. We do not think this contention can be supported. The motion was directed to excluding all testimony-bearing on the cause of action.

Even thoúgh plaintiff might not be entitled to recover all he claimed, this should not preclude him from proving any damages. Nor do we understand the rule of pleadings to require that plaintiff must allege affirmatively that he endeavored to make the damages-as light as possible. (Costigan v. The Mohawk & Hudson R. R. Co., 2 Den. 609.) And in Howard v. Daly (61 N. Y. 362) it is said:: “ Prima faoie, the plaintiff is damaged to the extent of the amount stipulated to be paid. The burden of proof is on the defendant to-show either that the plaintiff has found employment elsewhere, or that other similar employment has been offered and declined, or, at least, that such employment might have been found. I do not think that the plaintiff is bound to show affirmatively, as a part of her case, that such employment was sought for and could not be found. (2 Greenl. on Ev. § 261; Costigan v. M. & H. R. R. Co., 2 Den. 609.) ”

The case of Fuchs v. Koerner (107 N. Y. 529), relied on by appellant, in no way militates against, but rather enforces the view herein expressed.

We think the judgment should be affirmed, with costs.

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Judgment affirmed, with costs',  