| The Superior Court of the City of New York and Buffalo | Jun 15, 1891
The complaint alleges that the defendant has for years been doing business under the name of “F. A. Davis, Attorney;” that he was. personally interested in the business carried on under said name and style, and that the addition of “Attorney” was simply a name or style adopted by defendant, and under which lie had carried on his business. The complaint alleges long dealings between plaintiff and defendant, in respect of which an accounting and a settlement and adjustment was had on December 31, 1885, by which a certain sum, viz., $28,170.68, was admitted to be due from
The demurrer is framed under section 494 of the Code of Civil Procedure, and is substantially in the words of that section, that each of said counterclaims is insufficient in law, and that the facts stated therein do not constitute any defense or any counter-claim to the action. While the demurrer is framed under section 494, it is also in form sufficient to cover the fourth and fifth subdivisions of section 495. The action is brought against P. A. Davis individually, and the complaint expressly alleges that, although he was in the-habit of adding “Attorney” after his name in all his contracts and business transactions, yet plaintiff’s dealings were with him, the demand against him is a personal one, and the judgment sought against him is against him individually and personally. It would seem clear, after this statement, that any demand alleged to exist in favor of a third person, Lizzie S. Davis, not a party, could not properly be set up as a counter-claim in this action. The statement of this proposition seems to carry all force which can belong to it. In this action plaintiff claims and can recover nothing against Lizzie S. Davis. It would seem to follow that Lizzie S. Davis in this action can set up and recover nothing whatever against the plaintiff.
The defendant argues the case as if all that was necessary was that the facts set forth in this counter-claim should be sufficient to constitute a cause of action. This has little to do with the matter. The causes of action which are set forth are causes of action in favor of one Lizzie S. Davis against this plaintiff, which she might enforce in a separate action brought by her for the purpose. She has not been sued, and she cannot in this way inject herself as a defendant, or her demand as a defense or counter-claim, into the action. The only reference to any authority made by the defendant is to Dicey on Parties to Actions, on page 159, and note. This portion of the treatise referred to simply deals with the question of who may bring an action, whether the principal or the agent. The citations made in no way refer to or affect the question now before the court. If either Lizzie S. Davis, the alleged principal, or P. A. Davis, as the alleged agent for Lizzie S. Davis, should choose to bring an action against the plaintiff, he would be required to meet it in such way as he might be advised. In such an action, if the plaintiff failed to succeed, defendant would be entitled to a proper judgment against or affecting Lizzie S. Davis. In the present action he can in no way obtain any judgment or relief against her, nor can she in this action settle any claim she may have against him. The Code (section 449) permits a person with whom or in whose name a contract is made for the benelit of another to prosecute the action to recover the debt due, while it requires (section 501) that the counter-claim permitted to be interposed shall belong to the defendant. The reason of this is that, while the agent may sue and collect for the benefit of his principal any demand owing to him, he can