
    Elwood S. Hand, Resp’t, v. Charles P. Rogers et al., App’lts.
    
      (New York City Court, General Term,
    
    
      Filed April 23, 1894.)
    
    1. Pleadings—Denial—Failube of peoof.
    Where the answer puts in issue the co-partnership of the defendants at the time the contract in question was made, a failure on plaintiff's part to establish such fact entitles the defendants to a dismissal of the complaint.
    2. Evidence—Co-paetnebship.
    In an action against a firm, where such relation is denied, one of the defendants may be asked on the part of the defense, as to who constituted such firm at the time in question.
    
      John Henry Hull, for app’lts; Charles He Hart Brower, for resp’t.
   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 Iriquois at Buffalo, New York, 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 default is as follows: “ On information and belief that at all the times hereinafter mentioned the defendants were and still are co-partners, 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 7,1894, admits that the defendants are co-partners under the name of Charles P. Rogers & Co., but denies each and every other allegation in the complaint; thus denying that they were co-partners 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 the 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 co-partners as admitting the truth in the averment of the complaint that “ at all the times hereinafter mentioned the defendants were and still are co-partners ” and there is no evidence to show that •the defendants were co-partners at the time the contract was made between the plaintiffs and Charles P. Rogers & Co. or who composed the firm at that time. The answer clearly puts in issue the allegation in the complaint that the defendants were co-partners at the time the contract was made, and the failure of the plaintiff to establish the fact of co-partnership, by evidence, was such a failure of proof as to entitle the defendant to a dismissal of the complaint, and the denial of the motion made by the defendants’ counsel 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 (fol. 32): “ who constituted the firm of Charles P. Rogers & Company, at the time this agreement was made, March 30, 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 issue framed by the' pleadings, and should have been received. The respondent insisted 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 appellant to abide the event.

All concur.  