This is an action brought by the plaintiff, who was, in form at least, the sole lessee of certain premises, to recover damages against the lessors for placing a steam boiler under the premises leased to the plaintiff, whereby, as alleged, the plaintiff’s goods in the store above were injured and damaged by excessive heat. It appeared on the trial that the plaintiff had a partner in the business. The nonjoinder of such partner was not in any manner disclosed by either the complaint or answer. The rule seems to be well settled that when the defense of nonjoinder of parties plaintiff exists, and is not disclosed by the complaint, it must be brought forward in the answer. Bank of Havana v. Magee, 20 N. Y. 602; opinion of Comstock, J.; Zabriskie v. Smith, 13 N. Y. 322; Code, §§ 147, 148. The judge at the trial dismissed the complaint upon the ground of the nonjoinder of the partner. This was erroneous whether the plaintiff would have been able to maintain the action in his sole name or not, if all the facts had been pleaded.
This is a motion for'a new trial, the exception having been sent to the general term in the first instance.
A new trial is ordered, costs to abide the event.
Hew trial ordered.