#### The International Trust Company, Respondent, *v.*Israel Caroline, Appellant.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Pleading — defenses — negotiable instruments —• partnership.

Where plaintiff alleges that certain notes set forth in its complaint were made by the Caroline Leather Company, and signed “ Caroline Leather Co., by Harry Caroline, Prop.,” and that defendant indorsed the same, his separate defense that the alleged maker was a co-partnership in which he was a partner, that sub*180sequently to the making of the notes in suit said co-partnership made an assignment of certain assets for the benefit of creditors upon the condition that all the creditors who became parties thereto took whatever dividends accrued, in full payment of all claims “ against the defendant and his co-partners or any of them,” that the plaintiff took such dividends “which said sum the plaintiff accepted as a full and final payment of any and all claims which it then had against the Caroline Leather Company of which the defendant was a co-partner,” is good.

The mere incident that defendant in a part of said defense pleaded that the partnership was discharged, a mere legal conclusion, did not limit the effect of the allegations of fact in the separate defense.

Appeal by defendant from a judgment in favor of plaintiff, entered in the City Court of the city of Hew York, after a trial before a judge, a jury having been waived.

Goldstein & Goldstein (David Goldstein, of counsel), for appellant.

Louis W. Severy, for respondent.

Bijur, J.

The complaint sets out that certain notes were made in favor of plaintiff by the Caroline Leather Company and signed “ Caroline Leather Co., by Harry Caroline, Prop.” and that the defendant indorsed the same. As a separate defense the defendant sets up that the Caroline Leather Company was a copartnership in which he was a partner; that subsequently to the making of the notes in suit the copartnership executed an assignment of certain assets to trustees for the benefit of creditors upon the condition that all the creditors who became parties thereto took whatever dividends accrued, in full payment of all claims “ against the defendant and his copartners or any of them;” that the plaintiff took such dividend “ which said sum the plaintiff accepted as a full and final payment of any and all claims which he then had *against the Caroline Leather Company*of which the defendant was a copartner.”

The appeal is based on the fact that the learned court below dismissed the separate defense. The motion for a dismissal of the complaint was not very clear. If plaintiff *181meant to claim therein that the notes in suit were the notes" of Harry Caroline, individually, and not the notes of the partnership, the Caroline Leather Company, the claim cannot he sustained. The notes were not signed by Harry Caroline, and the complaint itself alleged that they were made by the Caroline Leather Company. If, however, plaintiff is to be understood as having meant that defendant pleaded a discharge of the partnership only and not that of the individual defendant as endorser, then it must be noted that the terms of the agreement into which plaintiff entered are pleaded in the defense as constituting a satisfaction and discharge of *the defendant*and his copartners or any of them, and that it is alleged as a fact that plaintiff became a party to such agreement. The mere incident that defendant has in a further portion of the defense pleaded, as a legal conclusion merely, that the partnership was discharged, does not limit the effect of the allegation of fact hereinabove referred to. Cutting v. Lincoln, 9 Abb. Pr. (N. S.) 436, 438; Walden v. Crafts, 2 Abb. Pr. 301, 306; Brewster v. Stryker, 2 N. Y. 19, 41; Union Bank v. Bush, 36 id. 631; Chatfield v. Simonson, 92 id. 209, 216 et seq.

Seabury and Guy, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.