
    Elmer S. Hand, Appellant, v. Charles P. Rogers et al., Respondents.
    (City Court of New York
    General Term,
    October, 1895.)
    In.an action against several defendants as copartners upon a contract made by one of them in the name of the firm, where it appears that the pres-' ent copartnership was formed after the making of the contract, and that prior thereto a partnership existed between the defendant executing the contract and another person, a dismissal of the complaint against all the defendants is proper, as no judgment could be entered against such defendant individually.
    , Appeal from judgment dismissing the complaint.
    
      G. JDe H. Brower, for appellant.
    
      J. BJ. Hull, for respondents.
   Eitzsimons, J.

The plaintiff failed to show that the defendants were copartners; not only that, but he affirmatively shows that the defendants’ firm was not the firm who signed the instrument or agreement upon which this action is based. It is a fact that defendants’ firm was not in existence at the time it was signed; therefore, it is clear that no cause of action was established against the defendants.

The plaintiff was not entitled to a judgment against Charles P. Rogers individually. The agreement in question was not one upon which he might be sued alone; it was not his individual agreement, but the agreement of his firm as it then existed, and no action could be maintained against Rogers indi- ’ vidually upon such agreement, and could only be brought against him and his (their) copartners.

This being in our judgment the law, it follows that in this action no judgment could be entered against him, and, therefore, as against him the complaint was rightfully dismissed.

The judgment is affirmed, with costs.

Van Wyck, Ch. J., concurs.

Judgment affirmed, with costs.  