#### Albert L. Woarms and Louis J. Lesser, Individually, and Albert L. Woarms *et al.,*as Executors of David S. Hess, Deceased, Respondents, *against*Moritz Bauer, Appellant.

(Decided June 16th, 1890.)

Articles of copartnership contained an agreement that, in the event of the death of a certain one of the partners before the expiration of the term of the copartnership, his'interest therein should survive to his personal representatives and the business should be continued by them and the other partners as copartners. During the term of the partnership, such partner died, leaving a will by which he directed his executors to carry out this agreement. *Held,*that the agreement was valid, and the defendant in an action for a debt due to the firm, could not object that the executors were improperly joined as plaintiffs.

Upon trial of an action on the pleadings, the sole question being the sufficiency of a defense of misjoinder of parties plaintiff set up by answer, judgment was rendered for plaintiffs. *Held,*on appeal therefrom, that, the *334decision being correct, the judgment would not be reversed merely to enable defendant to apply to the court below for leave to amend, as on trial of a demurrer; no request therefor having been made in the trial court.

Appeal from a judgment of the General Term of the City Court of New York affirming, a judgment of thaf court entered upon trial of an action on the pleadings.

The action was brought to recover for work and labor performed for the defendant by the firm of D. S. Hess and Company. The complaint, after setting' forth the doing of the 'said work, alleged that, by virtue of the articles of the copartnership of the firm, it was mutually agreed that in the event of the demise of D. S. Hess, one of the' members, before the expiration of the stipulated term of partnership, his interest as a partner in said firm should survive and accrue to and be continued by his personal representatives, and that said business should be continued by the other partners and the said representatives as copartners. It further alleged that, before the expiration of the said stipulated term of partnership, and before the commencement of this action, Hess died, leaving a will, by which the plaintiffs, Albert L. Woarms, Martin S. Fecheimer, and Sarah Hess, were appointed as executors thereof and were directed to carry out the provisions of the copartnership articles aforesaid; that letters testamentary had been issued to the said executors, that they qualified as such executors and entered upon the discharge of the duties of their office, and carried out the aforesaid provisions of the copartnership articles of the firm of D. S. Hess and Company, as directed by the same.

The answer denied the value of the work, labor, and services claimed, and further answering, and as a separate and distinct defense, alleged a misjoinder of parties plaintiff.

The cause came on for trial in the City Court and was duly submitted upon the pleadings, the sole question raised being the sufficiency of the defense of misjoinder of parties plaintiff. Judgment was given for the plaintiff for the whole amount claimed, and was affirmed on appeal to the General Term of *335the City Court; and from that decision defendant appealed to this court.

*Donohue, Newcombe Cardozo,*for appellant.

*M. A. Lesser,*for respondents.

J. F. Daly, J

[After stating the facts as above.]—The only question in the case is, whether the personal representatives of a deceased partner may be joined as parties with the surviving partners, in' an action upon a debt due the original copartnership, where such personal representatives are directed by their testator, in his last will and testament, to continue with the survivors the business of the copartnership pursuant to the provisions of the original- articles, which stipulated that in the event of the death of the testator his interest as partner should survive and accrue to and be continued by his personal representatives and the other survivors.

There seems to be no possible objection to such a course. While the rule is that, in the event of the death of a partner, the survivors “ succeed primarily to all the rights and interest of the partnership and have the entire control of all the partnership property and the sole right to collect partnership dues ” *(Voorhis*v. *Child,*17 N. Y. 354),.yet the rule is not applicable where, by agreement among the copartners, the interest of any one of them who dies, survives, accrues to, and is continued by his personal representatives as copartners.

It is perfectly competent for copartners to make such an agreement, and for one of them to direct in his last will and testament that it be carried out by his personal representatives, and for the surviving partners and such representatives to act under such agreement *(Lane*v. *Arnold,*11 Daly 293). When such personal representatives are admitted by the other copartners to continue the business as succeeding to the rights and interest of the deceased, the survivors thereby waive their right to the exclusive control of the co-*336partnership property and their succession to all the rights and interests of the partnership, and necessarily waive their exclusive right to collect the copartnership dues. The latter right to collect and sue for the partnership debts grows out of the exclusive right to possession and control of the copartnership effects, and if the latter right be waived and the representatives of a deceased copartner are admitted to a share in it, they are also admitted to the right of collection and suit. The question is one wholly in the discretion of the surviving partners, and the debtors of the firm have no ground of complaint. The defendant, therefore, cannot object to the joining of the representatives of the deceased partner with the surviving partners in this action, and the only question litigated in the court below was properly disposed of.

Upon this appeal the point is made that, as the trial was upon the pleadings, the defendant should have had leave to amend as upon the decision of a demurrer-, and that the judgment should be reversed. No request for leave to amend was made in the City Court, and there is nothing for us to review upon that head." The only point submitted to the court at the trial was the alleged misjoinder of parties plaintiff, the denials in the answer having been apparently waived. Had an application for leave to amend been made, it would have been granted. It seems now to be suggested for the first time without the City Court having had the opportunity to pass upon it. As it was a matter within the discretion of that court, the application to us cannot be entertained; and the judgment cannot be reversed in order to permit such application to be made in the City Court.

The judgment should be affirmed, with costs.

Larremobe, Ch. J., and Bischofe, J., concurred.

Judgment affirmed, with costs.