40 N.Y.S. 48 | N.Y. App. Div. | 1896
The first position of the appellant is,'that his motion at the end of the case to dismiss the complaint should have been granted upon the ground that, though Easton N. Frisbie, one of the partners, was made a party, he was never served with a summons, and upon his death the action was not continued against his personal representatives. It is the rule that in an action against partners all should be made defendants; and if the case had been reached for trial and it appeared that necessary parties had not been sued and served, and
Ap&rt from this .there is the underlying question as to whether, had such a motion been properly made, the personal representatives were proper or necessary parties. In First Nat. Bank v. Lenk (32 N. Y. St. Repr. 192) it was said, “ the rule is well established that where one of two or more joint debtors die, his personal representatives should not be joined in an action with the survivors, except upon the allegation of the insolvency of the survivors. We see no reason why this rule does not apply to the case of the death of a joint debtor pending the action.” (See, also, Hauck v. Craighead, 67 N. Y. 432; Richter v. Poppenhausen, 42 id. 373; Barnes v. Brown, 130 id. 372; Voorhis v. Childs' Executor, 17 id. 354.)
These cases we think dispose of appellant’s contention as to the necessity for bringing in the representatives of deceased partners, because there was neither allegation nor proof that the defendant, who was the sole surviving partner, was insolvent.
If the testimony would justify the inference that at the time the contract was made which is the basis of the second and third .causes of action, the plaintiff knew that Blanchard was not a member of the firm, Blanchard would not be liable, even though the contract was made by the partnership.
The plaintiff testifies that he never received any notification from Mr. Blanchard that he had retired from the firm, and never received any notice from Frisbie, Bissell & Co.’s office of the dissolution of
It is insisted, however, that as,-plaintiff knew after the contract was made that the defendant retired from the firm of Frisbie, Bissell & Co., he is not liable for services- rendered or -damages accruing subsequent thereto. If we assumed that it was established that defendant so relied and plaintiff knew it, this, in no way, would alter his obligations to plaintiff under the contract. This precise question was recently discussed and disposed' of in U. S. Nat. Bank v. Underwood (2 App. Div. 345), wherein it was said : “ The mere fact of dissolution has no- effect upon the rights of third parties, It is said) in. Parsons on Partnership, that no dissolution of any kind affects the rights of third parties who have had dealings with the partnership without their consent. This is the universal, rule without any exception whatever. * * * , As the fact of the dissolution has no effect upon the rights of third parties, of course the knowledge that-there has been dissolution is equally unimportant.”
With respect to the amount of damages, the plaintiff, on cross-examination, testified as follows: “ I did not earn any money at all by any labor from April 1st, 1887, until 1890. * * * Q. Did you try to do anything \ A. Nothing, except to put myself in the-way of the firm of Frisbie, Bissell & Co. to collect what they ought to pay me, and do whatever they put me to do. I was kept here, and I was-held subject to'their dictation.” The appellant invokes
Even thoúgh plaintiff might not be entitled to recover all he claimed, this should not preclude him from proving any damages. Nor do we understand the rule of pleadings to require that plaintiff must allege affirmatively that he endeavored to make the damages-as light as possible. (Costigan v. The Mohawk & Hudson R. R. Co., 2 Den. 609.) And in Howard v. Daly (61 N. Y. 362) it is said:: “ Prima faoie, the plaintiff is damaged to the extent of the amount stipulated to be paid. The burden of proof is on the defendant to-show either that the plaintiff has found employment elsewhere, or that other similar employment has been offered and declined, or, at least, that such employment might have been found. I do not think that the plaintiff is bound to show affirmatively, as a part of her case, that such employment was sought for and could not be found. (2 Greenl. on Ev. § 261; Costigan v. M. & H. R. R. Co., 2 Den. 609.) ”
The case of Fuchs v. Koerner (107 N. Y. 529), relied on by appellant, in no way militates against, but rather enforces the view herein expressed.
We think the judgment should be affirmed, with costs.
Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.
Judgment affirmed, with costs',