
    Elwood S. Hand, Respondent, v. Charles P. Rogers et al., Appellants.
    (City Court of New York—General Term,
    April, 1894.)
    The complaint in an action upon contract alleged that “at all the times hereinafter mentioned the defendants were and still are copartners.” The answer admitted that the defendants are copartners, but denied every other allegation in the complaint. Held, that this was not an admission that defendants were copartners at the time the contract was made, but put in issue the allegations of the complaint in that respect, and that a failure to establish the copartnership by evidence was such a failure of proof as to entitle the defendants to a dismissal.
    Under such an answer evidence to show who composed such firm at the time the contract was made is competent.
    Appeal from judgment, entered on verdict by direction of the court, and from an order denying new trial.
    
      Charles De Hart Brower, for respondent.
    
      John Henry Hull, for appellants.
   Conlan, J.

This is an appeal by the defendants from a judgment entered upon a verdict directed by the trial judge.

The action is brought to recover upon a contract to pay $205 in trade on the order of the plaintiff, the consideration therefor being the delivery of five copies of the book descriptive and illustrative of the Hotel Iroquois at Buffalo, N. Y., containing an advertisement of the business of Charles P. Rogers & Co., the contract bearing date November 30, 1889.

The allegation in the complaint charging the defendant with the default is as follows : “ On information and belief, that at all the times hereinafter mentioned the defendants were and still are copartners doing business in the city, county and state of New York, under the firm name and style of Charles P. Rogers & Co.”

The answer, verified February 1, 1894, admits that the defendants are copartners under the name of Charles P. Rogers & Co., but denies each and every other allegation in the complaint, thus denying that they were copartners in November, 1889, when the contract was made.

The evidence shows that Charles P. Rogers & Co., subsequent to the making of the agreement, sent to the plaintiff a copy of the matter for advertisement, and it was inserted in the book, and that in May, 1890,- the five books called for by the contract were sent to Charles P. Rogers & Co., at New York city, by American Express Company and the charges for transportation prepaid, and the evidence of the express company’s driver shows that the goods were delivered to Charles P. Rogers & Co., at Seventeenth street and Sixth avenue.

The plaintiff offered no evidence on the trial to prove the partnership of the defendants, and appears to have relied solely upon the admission' in the answer, that the defendants are copartners, as admitting the truth of the averment in the complaint that “ at all the times hereinafter mentioned the defendants were and still are copartners,” and there is no evidence to show that the defendants were copartners at the time the contract was made between the plaintiff and Charles P. Rogers • & Co., or who composed that firm at that time.

The answer clearly puts in issue the allegation in' the complaint that the defendants were copartners at the time the contract was made, and the failure of the plaintiff to establish the fact of copartnership by evidence was such a failure of proof as to entitle the defendants to a dismissal of the complaint, and the denial of the motion made by the defendants’ connsel for that purpose at the close of the plaintiff’s case was, therefore, error.

Charles P. Rogers was called as a witness on behalf of the defendants and asked : Who constituted the firm of Charles P. Rogers & Company at the time this agreement was made, November 30th, 1889?”

This question was objected to and excluded on the ground of the admission in the answer.

This was error; the evidence was competent under the issues framed by the pleadings and should have been received.

The respondent insists that the joinder of unnecessary parties, either plaintiff or defendant, is immaterial, but the authorities cited by him to sustain his proposition do not bear upon the case at bar.

For the reasons above referred to this judgment should be. reversed and a new trial ordered, with costs to the appellants to abide the event.

Newburger, J., concurs.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  