
    S. L. Snyder Co., Inc., Appellant, v. Milton Abrams, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Appeal — when dismissal of complaint reversible error — in action to recover for work, labor and services.
    Waiver — Municipal Court Code, § 88.
    In an action to recover for work, labor and services under a contract made with defendant who did not disclose that he was a member of a partnership and of which fact plaintiff was not aware until the trial, a dismissal of the complaint is reversible error.
    In a Municipal Court action on a partnership liability the right of a defendant to have his partners joined as defendants is waived unless taken by motion under section 88 of the Municipal Court Code.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, boroug’h of Manhattan, third district, in favor of the defendant, dismissing the complaint and from an order denying plaintiff’s motion to vacate said judgment and for a new trial.
    Louis Rosenberg, for appellant.
    Respondent filing no briefs.
   Whitaker, J.

Plaintiff sued to recover for work, labor and services performed by plaintiff’s assignor for the defendant.

The undisputed testimony shows that plaintiff’s assignor made the contract to perform the services, if one was made, with the defendant alone, who did not disclose at the time that he was a member of a copart'nership, and that plaintiff was not aware of that fact until the time of the trial. When it so appeared the trial justice dismissed the complaint upon the merits. This was error. It is not sufficient to relieve a party who makes a contract from individual liability; and to shift the liability upon a firm, unless the proof shows the existence of such firm at the time of the making of the contract, and knowledge thereof on the part of the plaintiff. The contract in this case was made with the defendant individually without knowledge of the existence of the copartnership of which the defendant claimed to be a member. ■

Moreover section 27, subdivision 2, of the Municipal Court Code provides that: “-No action shall be defeated by the non-joinder or misjoinder of parties. The names of new parties may be added and the names of parties misjoined may be struck out, by order of the court, at any stage of the cause and upon such terms as justice may require.” It has also been held that the right of a defendant to have partners joined upon a partnership liability is waived unless taken by answer or demurrer (Alaska Banking & Safe Deposit Co. v. Van Wyck, 146 App. Div. 5), now by motion under section 88 of the Municipal Court Code.

Guy and Cohalau, JJ., concur.

Judgment reversed, and new trial ordered, with thirty dollars costs to appellant to abide event.  