
    Henry Baron, Respondent, v. Samuel Lakow and Samuel R. Green, Appellants.
    Second Department,
    October 18, 1907.
    partnership — action against copartner for conversion — party — partner . cannot sue in his own name.
    Where one partner without the consent of his copartner pays the partnership money in the discharge of his individual debt, the cause of action to recover . the same is in the partnership, and an action for money had and received can- ' not be brought by the other partner in liis own name when there has been no dissolution or accounting. ,
    Such action does not lie in the name of . an individual partner ’although he joins ■ liis copartner as defendant, under section 448' of the Code'Of. Civil Procedure, in the absence of any allegation showing why the copartner was joined' as defendant rather than plaintiff, and it' is not shown that his consent to, act as. . plaintiff could-not be obtained. .
    Appeal by the defendants, Samuel Lakow and another, from a judgment of the Municipal Court of the city of. New York, borough ■. of .Brooklyn, in favor of the plaintiff, rendered on the 1st day of November, 1906. ■ ,' .. .
    
      Julius C. Rosenthal [Charles Goldzier with him on the brief]j -for the" appellants.
    
      Saul J. Baron [David Gerber with him. on the brief], for the respondent. ¡
    
   Hooker, J.:

! The complaint was oral, as follows:' “ for money had and received fbr Use of, the plaintiff.” The bill of particulars filed by the plaintiff states that the action - is brought by the plaintiff, a member of the firm of. H. Baron & Co., composed of -the plaintiff and the defendant Green, against Green, an absconding partner, and the defendant Lakow, for the return of partnership money wrongfully taken by the defendant' Green and .delivered to the defendant Lakow, who had' no ctaim against the firm in any amount, and who hrnew at the'time of the receipt of such money that he had no such claim. The plaintiff had judgment for the full amount of the partnership moneys paid to the defendant Lakow by the defendant Green and the defendants appeal.

It may be adniitted, so far as the decision of this case is concerned, as contended by the respondent, that one partner cannot apply the partnership funds to the discharge of his own private debt without the consent of the other partner; and that without-such consent the title of the partnership to the.property is not divested in favor of the private creditor, whether the latter knows that the property belongs to the partnership or not; and that the right of the partnership depends not upon whether the creditor knew it was partnership property, but rather upon the fact whether the other partner had assented to such application. (Rogers & Sons v. Batchelor, 12 Pet. 221.)' This principle, however, is not decisive of the questions raised on this appeal. Whatever moneys were paid to Lakow were partnership moneys, the title thereto being in the partnership rather than in the plaintiff; and this especially so since there had never been any dissolution of the partnership, accounting or other closing of the partnership existence. The complaint states that the money was had and received for the use of the plaintiff / the bill of particulars asserts that the action is ‘ for the return to the plaintiff of partnership money. The cause of action resided in the partnership and not in one of its members.

The plaintiff, however, seeks to sustain his judgment in view of the fact that he-joined his copartner as defendant,, and refers to section 448 of the Code of Civil Procedure, which provides: Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants, except as otherwise expressly prescribed in this act. But-if the consent of any one, who ought to be joined as a plaintiff, cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint.” The appellants contend that this provision of the Code does not apply to actions in the Municipal Court of the city of New York ; but that question it is unnecessary to determine for it is apparent that the plaintiff is not assisted by its provisions. It is to be observed that no. reason is stated in the complaint or in the bill of particulars why .the defendant Green, one of the copartners, was joined as "defendant rather' than as plaintiff. Further than this, the section permits joining as defendant one who ought to he plaintiff, only where his consent to act as plaintiff..camiot be obtained. Tile record of this case, not only .fails to .show that it was impossible to-obtain the consent of Green to join as a plaintiff, but also discloses ■ in the. crossrexamination of the plaintiff himself that no attempt was ever made to obtain Green's consent. Nor is it sufficient that the defendant Green is called in the bill of particulars an absconding partner, for the proof wholly ■ fails to sustain the assertion. It is true that he ceased to take part in the transaction of the partnership business about a month before the commencement of this action, hut he was resident in the borough of Brooklyn at the time the- partnership was made in December, 1905, continued such at least until July, 1906, and was still such resident at the time of the trial; and no suggestion-or -intimation appears in the record that he has' ever left the borough of Brooklyn or even so much as changed his place of residence. No reason appears why he should be called an absconding partner, and none why his consent to.join as a plaintiff should not have at least been sought before the plaintiff undertook to sue in his own name for the'recovery of moneys, the title of which was in the partnership. The judgment must,' therefore, he reversed and' a new trial, ordered, costs to abide the event.

Jbhks, Gaynob, Rich and Milleb, JJ., concurred.

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