Frazier v. Gibson
New York Supreme Court
Appeal from a judgment of the County Court of Ulster county, reversing a judgment of a Justice’s Court in favor of the plaintiffs; The action was brought upon a claim against the defendant, held by one Bogart, and by him assigned to the firm of L. S. Lawrence & Co., which was composed of the two plaintiffs and L. S. Lawrence.
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Appeal from a judgment of the County Court of Ulster county, reversing a judgment of a Justice’s Court in favor of the plaintiffs; The action was brought upon a claim against the defendant, held by one Bogart, and by him assigned to the firm of L. S. Lawrence & Co., which was composed of the two plaintiffs and L. S. Lawrence. The defendant moved, in the Justices’ Court, for a nonsuit, on the ground that Lawrence should have been named as a plaintiff, which motion was denied and judgment rendered in favor of the plaintiff, which was reversed on appeal to the County Court. The defect of parties…
1Opinion of the Court
Learned, P. J.:
The cause of action was assigned to a partnership, consisting of three partners. This action was brought in the name of two of them. The non-joinder does not appear in the complaint, and is not set up in the answer.
*39The Code of Procedure, section 144, subdivision 4, permits a defendant to demur for defect of parties, if such defect appears in the complaint. If it does not appear on the face of the complaint, he must take the Objection by answer. Otherwise it is waived. (§§ 147, 148.) Helice, if the cause of action be in several parties, a less number than the whole may recover,…
2Cases cited1 opinion
- Rice v. HollenbeckNew York Supreme Court · 1855