11 Daly 293 | New York Court of Common Pleas | 1882
The act of 1833 provides that “no person shall hereafter transact business in the name of a partner not interested in his firm.” The question is whether the plaintiffs, by doing business in the name of a person not interested in their firm, have lost the right to recover the value of the goods which they sold to the defendants. We are first to inquire who are interested in the firm that did business under the name of Mayor, Lane & Co. It is conceded that the plaintiffs Lane and Harder were so interested. Pierre A. Mayor in his lifetime was also interested. Harder was the partner represented by the word “Co.” When Mayor died he left a will in which he authorized his executors to “ carry on and conduct the business that I am
The executors, in obedience to the requirements of the will, carried on the business in conjunction with Lane and Harder. The name of the old firm of Mayor, Lane & Co. was continued in use, and the goods, to recover the price of which this action was brought, were sold by the plaintiffs in the name of Mayor, Lane & Co.
It was not unlawful for Mayor, the testator, to direct his executors to continue the business. The executors might make themselves personally responsible, if they accepted the trust, and carried on the business; but it was not illegal for them to leave a part of the estate in the hands of the surviving partners, and at the risk of the business. They had a right, as executors, to a share of such profits as might be made. The estate, as well as themselves, might be liable to creditors for losses. It is evident, therefore, that some one besides Lane and Harder was interested in the business as a partner.
It is not strictly accurate to speak of an estate as a partner, for a partner must have a personal existence; but if Lane and Harder, as well as the executors, supposed that by the terms of the will the firm was to be continued under its old style, notwithstanding the devolution of the interest of Mayor upon his executors, the mistake they made was, not in falsely pretending that Lane and Harder had a partner, but in permitting the executors to transact business in the name of their testator. As was said by Judge Miller, in Wood v. Erie R. R. Co. (72 N. Y. 198), the object of the act of 1833 is “to prevent persons from obtaining false
The act forbids the use of the name of a partner not interested in the firm. Of course, after Mayor’s death he personally was no longer interested. There was at most a technical violation of a penal statute, resulting from a misunderstanding of the law. The will of Mayor, rather than the act of 1833, controlled the selection of the name under which the business was continued. But the statute was violated and a wrongful intent must be inferred from the intentional doing of the illegal act.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
As I do not feel at liberty to place a construction upon the statute that would save persons, innocently violating the law, from the consequences of their lapse from strict conformity to its provisions, and as the court of last resort may apply the law in a more liberal spirit, I favor the granting of an application for leave to go to the Court of Appeals.
Van Brunt and J. F. Daly, JJ., concurred.
Judgment reversed and new trial ordered, with costs to abide event.