Frumes v. Glaser

127 N.Y.S. 321 | N.Y. App. Term. | 1911

LEHMAN, J.

The defendant agreed to sell his photographic busi-. ness to a copartnership composed of three parties, Spachner, Berger, and Frumes. He received $50 at the time the agreement was made, and then signed the following receipt:

“Received of Spachner, Berger A Frumes,' on account of sale of photo studio located at 1532 Third avenue, near Eighty-Sixth street, New York City, the sum of fifty ($50). Balance due on above sale the sum of seven hundred and fifty dollars, to be paid by above named buyers on Friday, January 21, 1910, when possession of studio named above shall be taken by them,’’ etc.

The sale was never consummated, and the plaintiff claims that the contract was broken by the defendant, and! brings this suit for the deposit as an individual, without alleging or proving any assignment from his partners. The defendant, by amendment to the answer, pleaded that there was a nonjoinder of parties plaintiff, and that the plaintiff was not the real party in interest.

The plaintiff introduced some evidence that the $50 paid belonged to him, and he was given judgment for this amount. His evidence was insufficient to sustain the judgment. The contract was made with three parties, the payment was expressly stated to be made by them, and it is conceded that they were jointly to be the owners of the business, if the sale was consummated. The defendant was liable to all of them jointly, and it is immaterial, even if true, that the plaintiff advanced to them the money which was paid by them jointly. If he seeks the recovery of the money so advanced, he must obtain an assignment from them of their claims against the defendant, which cannot otherwise be finally determined in an action where they were not made parties. There are also some errors in the exclusion of proper questions on plaintiff’s cross-examination.

Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.