The complaint sets out a cause of action for goods sold and delivered by the plaintiffs to the ‘firm of George D. Ferguson & Co., consisting of the defendant and Dorothy Ferguson. It also averred the death of the latter and. the continuance of the defendant as sole svirvivor. It further averred the execution and delivery of a promissory note by the defendant to the plaintiffs for the amount of the bill, after the death of Dorothy, the non-payment of said note at maturity, and demanded judgment for the amount of' the bill, interest and costs. These averments constituted a good cause of action for goods sold and delivered, and the demand for judgment is in harmony therewith. The action is,, therefore, to be treated as -one upon the original demand for the value of the goods sold, and upon the proof, a recovery is authorized therefor. (Patterson v. Stettauer, 8 J. & S. 54.) The debt existed, and the note only operated to extend the time of payment. (Jagger Iron Co. v. Walker, 76 N. Y. 521.) The defendant might, perhaps, have insisted upon the production and delivery of the note into court, but. no such question was raised and no- demand therefor was made. In form, the action was against the defendant individually and as sole surviving partner. This creates- no obstacle to a recovery. When the •defendant became the surviving partner, he took the legal. .title to the-partnership property. (Williams v. Whedon, 109 N. Y. 333 ; Pars. Part. [4th ed.] § 345, and note, p. 437.) He became liable to *563account to the creditors for all of the property of the partnership, and, in addition, was individually liable to pay the debt. An action might have been maintained against him without any suggestion of the partnership, and a recovery had. Such has always been the rule. (Goelet v. M' Kinstry, 1 Johns. Cas. 405 ; Grant v. Shurter, 1 Wend. 148.) The cause of action against him as surviving partner could also be joined with one- against him as an individual. (Kent v. Crouse, 5 N. Y. St. Repr. 141; Nehrboss v. Bliss, 88 N. Y. 600.)
Such being plaintiffs’ legal rights, it is clear that they could maintain the action as it was brought. The court, acting within its legal right, could have granted judgment against the defendant individually, as well as against him as surviving partner. In fact, while the relation is dual in a sense, it is so in form only, as the effect of directing judgment against the defendant as a surviving partner is to permit of the enforcement of the same, not only against the property of the partnership, but against individual property as well. There exists no basis for any legal complaint in what has been done.
The judgment should, therefore, be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.