
    Henry H. Persons and John R. Hazel, as Receivers of the Bank of Commerce in Buffalo, Respondents, v. Edward H. Kruger, Appellant, Impleaded with Buffalo City Mills, Limited.
    (No. 1.)
    
      Action against a firm — a defense that there are partners not made parties must he pleaded — the answer must state their names.
    
    In an action to recover upon a note executed in the name of B. H. Kruger & Co. by one Brown, acting under a power of attorney, bearing the signature of E. H. Kruger & Co., the complaint alleged that the defendant "‘Edward H. Kruger is the sole member of the firm of E. H. Kruger and Company.” The answer interposed by the defendant Kruger denied that he was “the sole member of the firm of E. H. Kruger & Company,” and that there ever was such a firm, but upon the trial he admitted the existence of the firm and that he was a member thereof, and that he executed the power of attorney.
    
      Held, that his failure to state in his answer the names of the other members of the firm, if any, coupled with his admissions upon the trial, was a practical concession that he was the sole member of the firm;
    That if there was a defect of parties, it was waived by his failure to raise the objection by answer or demurrer.
    Appeal by the defendant, Edward IT. Kruger, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 9th day of June, 1898, upon the decision of the court rendered after a trial before the court without a jury at the Erie Trial Term, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 17th day of .June, 1898, denying said defendant’s motion for a new trial.
    
      The action was brought to recover upon a promissory note alleged to have been executed by the defendant, Edward H. Kruger, under the firm name of E. IT. Kruger & Co., by the duly authorized agent and attorney of said firm.
    The complaint alleges “ that Edward H. Kruger is the sole member of the firm of E. TI. Kruger and Company, doing business at Elizabeth City in the State of North Carolina.” The answer of the defendant Kruger denies “ that he is the sole member of the firm of E. II. Kruger & Company, doing business at Elizabeth City in the State of North Carolina, and denies that there is or ever was such a firm as E. IT. Kruger & Company, of which this" defendant was or pretended to be a member.”
    
      C. J. Church, for the appellant.
    
      Norris Morey, for the respondents.
   Spring, J.:

The answering defendant, after denying there was a firm of E. H. Kruger & Co., or that he was a member of any such firm, admitted both facts upon the trial. He admitted the execution of the power of attorney to Brown. That bore the signature of E. H. Kruger & Co., and was executed by the defendant himself; it was under seal and acknowledged by Kruger; and the notary, to put at rest any question of defendant’s membership in said firm, certified to that fact and that defendant acknowledged the power of attorney to be their act. This established the copartnership and Kruger’s connection with it, and this being supplemented by the promissory note, bearing the signature of E. H. Kruger & Co. by A. Brown, attorney, admittedly made by Brown, we have irrefragable proof of the due execution of the note. The only peg upon which the defendant can hang the merest semblance of his shadowy defense is that the record fails to show any proof that he was the sole member of the firm of Kruger & Co. He does deny that averment in the complaint; but what is its significance, as long as the existence of the firm and his membership in it are conceded facts ? He is liable for the debt and could have been sued, and none of his partners, if any, need have been served, though made parties.

In his answer, he contents himself with denying the copartnership and his connection with it; he does not aver that he is a member of the firm and that others, naming them, are his copartners. If there was a defect of parties, he must either demur or allege that fact in his answer, if the face of the complaint does not reveal it. (Code Civ. Proc. § 488; Haines v. Hollister, 64 N. Y. 1, 4; Mitchell v. Thorne, 134 id. 536.)

By omitting to do this he assents that all the proper parties are before the court. (Code Civ. Proc. § 499 ; Hier v. Staples, 51 N. Y. 136; Hand, v. Burrows, 15 Hun, 481; Fort Stanwix Bank v. Leggett, 51 N. Y. 552.)

By denying he is the sole member he emphasizes in his pleading the fact there are other persons belonging to the firm, and if he desires them to be brought in he should, in his answer, state who they are. His failure to do this, in connection with his admission of the execution of the power of attorney and of the note, constitutes a practical concession in the proofs that he is the firm of Kruger & Go.

In the present aspect of the case it is as if he had admitted the copartnership ; that he is a member of it and that the note is that of the firm, but denied he is the only member of the copartnership. Of what avail is that disingenuous pleading ? He must state who the other partners are. The knowledge is peculiarly his own. The object of making all copartners defendants is, primarily, to enable the plaintiff to obtain judgment against all of them; secondly, to acquire the copartnership assets first to be applied in the payment of the debts; and, thirdly, to permit one defendant, if he personally pays the judgment out of his own property, to obtain an assignment of the same in the event he seeks to make his joint debtors contribute. The first purpose is solely for the benefit of the plaintiff and is of no concern to the defendant; the other two are to the advantage of defendant, and, if he desires to reap the benefit, he must, by fairness in his answer, put himself in the position to do so.

If the plaintiff had alleged in his complaint that there was a copartnership of which Kruger was a member, and stopped there on that subject, and defendant had denied the existence of the firm and that he was a member of it, if the admissions and proofs were as appear in the record now, he could not claim there were other copartners. It would be too late for him to do that at the trial. His time to take advantage of that defect was in his pleading. Where two copartners are sued with an allegation they compose the firm, if the defendants content themselves with simply denying the existence of the firm and their interest in it, and then come down to the trial and admit there is a firm and they are both copartners, they cannot then, under their denial that they made up the firm, claim the plaintiff should prove they were the only members of it. That would be permitting them to screen themselves behind the allegation that there was no firm with which they were connected, and then, after these facts were established, to avail themselves of another defense for their benefit, which is incompatible with the defenses, they have spread upon the record.

If the complaint in an action of partition contains the allegation that certain parties are the only tenants in common of the premises described, the defendant cannot rest upon the denial of that averment. If within his knowledge, he must set forth who the other parties are, if he seeks to challenge the statement. It is more to the purpose to require it in an action against copartners, for the reason a defending copartner knows who his associates are, and the defense is peculiarly for his benefit.

The milk in the cocoanut is, the defendant intended to rely upon his averment that there was no copartnership; and, if any, that he was not of it, and did not desire to make the inconsistent averment that there were other parties to the firm.

The judgment is affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  