Lapinsky v. Colish

Full title: SAM LAPINSKY, Appellant, v . MOSES COLISH and SADIS COLISH, Individually…

Court: Supreme Court, Appellate Term

Date published: Dec 1, 1908

61 Misc. 319 (N.Y. App. Term 1908)

113 N.Y.S. 733

Opinion

December, 1908.

Julius Blumofe, for appellant.

Sporborg Canter (Harold S. Fleischer, of counsel), for respondents.

FORD, J.

Plaintiff sues for goods sold and delivered. One paragraph of his complaint alleges that the defendants are partners. The next paragraph alleges a sale and delivery of goods to the defendants. The defendant Moses Colish answered.

On the trial, plaintiff could not prove the partnership, but at the close of the plaintiff's case defendant's counsel admitted that Moses Colish owed $188.25, which is the amount of plaintiff's claim. Plaintiff then moved to amend the complaint so as to allege a cause of action against Moses Colish individually instead of against a partnership and to discontinue as against the other defendant and to amend the summons and complaint by striking out the words "and as co-partners," which motion the court took under advisement, together with defendant's motion to dismiss at the close of the whole case. Subsequently the court dismissed the complaint.

Since the proposed amendment was not opposed on the ground of surprise such motion should have been granted. Universal Cutter Co. v. Emden, 107 N.Y.S. 669; Mun. Ct. Act, § 166, Langbein's Mun. Ct. Pr. (6th ed.), 329, 300 and cases there cited.

But it was not necessary to make such a motion. Where two or more are sued as joint debtors and plaintiff fails to establish a joint liability against all, judgment may be had against one if only one is liable. Stimson v. Van Pelt, 66 Barb. 151; Knickerbocker Ice Co. v. Theiss, 23 Misc. 625, distinguishing Hand v. Rogers, 16 Misc. 17, relied on by the defendant; Lawton v. Partridge, 111 A.D. 8.

It is certainly going pretty far to dismiss the complaint in an action for goods sold and delivered where one of the defendants admits owing the amount sued for.

The judgment should be reversed, with costs to the appellant, and judgment entered for the plaintiff and against the defendant Moses Colish for the relief demanded in the complaint, with costs in the court below.

GIEGERICH and HENDRICK, JJ., concur.

Judgment reversed, with costs to appellant, and judgment entered for plaintiff against defendant Moses Colish for relief demanded in complaint, with costs in court below.