
    WILLIAM O’TOOLE, Plaintiff, v. P. GARVIN and others, Defendants.
    
      New matter constituting a defense must be set up in the answer—chapter 381, Laws of 1833.
    Where a defendant wishes to defeat a recovery by the plaintiff, on the ground that the contract, upon which he is sued,is illegal, being- in violation of the act requiring that the designation, “& Co.” shall represent an actual partner, the necessary facts must be alleged in .the answer, as well as proved upon the trial.
    Motion for a new trial on exceptions taken at the trial of the canse at the circuit, and ordered to be heard, in the first instance, at the General Term.
    This action was brought to recover $1,140.42, for goods sold and delivered to the defendants. The defendants claimed that they bought the goods from William O’Toole & Go.; that the plaintiff was a member of such firm, and that such firm agreed to receive and had received other goods in payment. It appeared on the trial, that the plaintiff .had no partner, though he had done business under the name of O’Toole & Co. The court dismissed the complaint, on the ground that it was a violation of the law, for the plaintiff to carry on business in the name of William O’Toole & Co., when, in fact, the word “ Co.” did not represent an actual partner.
    
      D. M. Porter and John, L. lindsay, for the plaintiff,
    claimed the-defense that the word “ Co.” did not represent an actual partner, was new matter and should have been pleaded. ( Weaver v. Barden, 49 N. Y., 286; Code, § 149, pub. 2; Wright v. Delafield, 25 N. Y., 270; McKyring v. Bull, 16 id., 297; Kelsey v. Western, 2 Coms., 501; Field v. The Mayor, etc., 2 Seld., 179; N. Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co., 20 Barb., 468 ; Button v. McCauley, 38 id., 413; Moran v. Morrissey, 18 Abb., 131; Tell v. Beyer, 38 N. Y., 161; Treadwell v. Bruder, 3 E. D. Smith, 596.) That the act bringing the case within the statute, should be explicitly averred. (Miller v. Roessler, 4 E. D. Smith, 234; Bogardus v. Trinity Church, 4 Paige, 178, 15 Wend., 11; Goelet v. Cowdrey, 1 Duer, 132; Yertore v. Wiswall, 16 How., 8; Cassard v. Hinman, 1 Bosw., 207; Nat. Bank v. Orcutt, 48 Barb., 256; N. H. & N. H. Co. v. Quintard, 6 Abb. [N. S.], 128; Philipe v. James, 3 Robt., 720.) The exceptions to the statute should have been negatived. (Williams v. The East India Co., 3 East, 192 ; Hartwell v. Root, 19 Johns., 345; The King v. Hawkins, 10 East, 216; 1 Greenleaf on Evidence, § 80; The People v. Pease, 27 N. Y., 45; Farmers' L. & T. Co. v. Curtis, 3 Seld., 470; Chautauqua Co. Bank v. Risley, 19 N. Y., 369, 381; Langworthy v. Broomley, 29 How., 92.)
    
      Edward D. McQa/rihy, for the defendants,
    claimed that the contract was void. (Swords v. Owen, 43 How., 184; Halett v. Novion, 14 Johns., 290; Pennington v. Townsend, 7 Wend., 276; U. S. Bank v. Owens, 2 Peters, 527.)
   Daniels, J.:

At the close of the evidence, the court directed the complaint of the plaintiff to be dismissed, because it appeared during the trial that the goods sued for, were sold and delivered by the plaintiffs, in the firm name of William O’Toole & Co., when, in fact, he carried on business individually, having no person interested or concerned with him, represented by the addition to his name, of the term, & Co. This was a violation of the provision of the statute, prohibiting persons from carrying on business under that term, when it shall represent no actual partner or partners. And for such violation the plaintiff was guilty of a misdemeanor, liable to be punished by a fine not exceeding $1,000. As the sale and delivery of the goods, were transactions within the prohibition of the statute, good reason existed for holding that no recovery for their price or value, could be had. And such was held to be the effect of a violation of these provisions, in Swords v. Owen.

But that case is distinguishable in principle from the present one, in the circumstance that there, the defense was distinctly set forth in the answer, while in the present one, the answer sets forth nothing of that kind. The complaint upon this subject, alleges the goods to have been sold and delivered by the plaintiff individually, and the answer avers that, in all the transactions alleged in the complaint, he represented himself to be one of the firm of William O’Toole & Co., and acting for such firm in those transactions. It also alleges that the defendant then believed those representations to be true, and continued to believe them, and that the firm was composed of the plaintiff and some other person or persons unknown to the defendant who ought to he joined with him as plaintiffs in the action.

This answer not only failed to set forth the defense arising out of the violation of the statute, but beyond that, it distinctly alleged in substance that no such defense existed, for it averred that the term, & Co., used by the plaintiff in his business, did represent some person or persons who were interested with the plaintiff as partners, in the transactions referred to by the complaint.

If the plaintiff transacted business, under a name and style indicating the existence of a firm, when, in fact, he carried it on individually, and in that manner, sold and delivered the goods for the price and value of which he claimed to recover in this action, that was new matter constituting an affirmative defense, which, by the provisions of the Code, should have been set forth in the answer, in order to render it available upon the trial. For, in effect, every such defense admits the sale and delivery to have taken place, substantially as alleged by the plaintiff, but avers, that, in the transactions, the plaintiff acted under a prohibited style and name. The consideration, in cases of this description, is an unlawful one, and hence, the promise is not obligatory. When that fact exists, it must be pleaded in order to render it available by way of defense.

But in the present instance, although it appeared by the proof given upon the trial, it was neither disclosed by the complaint nor the answer. The former stated the goods to have been- sold and delivered by the plaintiff individually; while the latter denied that, and averred it to have been by him, as a member of a copartnership firm. In this state of the pleadings, proof of the fact that the plaintiff, in the sale, was guilty of violating the provisions of the statute referred to, did not justify a dismissal of the complaint. That a defense, not made by the answer, appears in the proof, is not sufficient to defeat a recovery by the plaintiff, when it arises out of new matter constituting it. To have that effect, it must be alleged as well as proven. In the last case, the fact constituting the defense, by way of new matter, was proved during the trial by the plaintiff, and yet it was not allowed to defeat a recovery, because the defendant had not alleged it in his answer.

Under the system of practice prevailing before the Code, the defense considered in the last case, as well as in the present one, may have been admissible under the general issue, without having the same effect follow a general denial, as that has been provided for, by the Code. For anything was admissible, under the general issue in assumpsit, which would show that the plaintiff never had a cause of action, while under the system devised by the .Code, all new matter, constituting a defense, is required to be pleaded by the defendant.

The disposition which was made of this case at the circuit, was erroneous, because the defense which was allowed to prevail, was not alleged in the answer of the defendant. For that reason, the order directing the complaint to be dismissed, should be- set aside and a new trial ordered, with costs to abide the event.

Davis, P. J., and Daniels, J., concurred

New trial granted, costs to abide event. 
      
       3 R. S., 5th ed., 978, §§ 42, 43.
     
      
       43 How., 176.
     
      
       Code, § 149.
     
      
       McKyring v. Bull, 16 N Y., 297, 309.
     
      
       Button v. McCauley, 38 Barb., 413; Wright v. Delafield, 25 N. Y., 266; Brazill v. Isham, 3 Kernan, 9.
     
      
       16 N. Y., 309.
     