Barron v. Yost
New York Court of Common Pleas
Appeal from special term. Action by Hugh J. Barron against Fernando Yost and another to foreclose a mechanic’s lien. After service of his answer, defendant Yost moved for leave to serve an amended answer setting up that the contract for doing the work and furnishing the materials alleged in the complaint was made by the plaintiff under the name “H. J. Barron & Co.,” which name was fictitious, in that there was no actual partner or partners represented by the designation “&…
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Appeal from special term. Action by Hugh J. Barron against Fernando Yost and another to foreclose a mechanic’s lien. After service of his answer, defendant Yost moved for leave to serve an amended answer setting up that the contract for doing the work and furnishing the materials alleged in the complaint was made by the plaintiff under the name “H. J. Barron & Co.,” which name was fictitious, in that there was no actual partner or partners represented by the designation “& Co.,” and that plaintiff was carrying on business under said fictitious name in violation of Pen. Code N. Y. § 363. The…
1Opinion of the CourtDaly, C. J.
In the case of Lane v. Arnold, 11 Daly, 293, following the current of decision in the courts of original jurisdiction in this state, we held that persons violating the statute of 1833 by doing business in the name of a party not a member of the firm, lost the right to recover for goods sold by them in that name, for, although there was only a technical violation of the statute, a wrongful intent must be inferred from the intentional doing of the wrongful aeti but in view of the observation in Wood v. Railroad Co. *45672 N. Y. 198, that the object of the act of 1833 was “to prevent persons from…
2Cases cited2 opinions
- Gay v. . SeiboldNew York Court of Appeals · 1884
- Lane v. ArnoldNew York Court of Common Pleas · 1882
3Cited by2 opinions
- Grandpre v. Chicago, Milwaukee & St. Paul Railway Co.South Dakota Supreme Court · 1922
- Kilpatrick v. VillaumeCity of New York Municipal Court · 1893