By the Court,
Savage, Ch. J.The declaration contained a count on a note, payable to the order of the plaintiffs. The note produced was payable to the order of Wardell, Van Burén Co. This was objected to on the ground of variance, but received subject to the opinion of this court. It was proved that the plaintiffs were partners, doing business as merchants under the firm of Wardell, Van Buren & Co. Had the declaration stated the note as given to the plaintiffs, by the name, style and description of Wardell, Van Burén & Co., there would have been no ground of objection. (3 Caines, 170.) There was, surely, no variance: the plaintiffs were shewn to be known by the description of the payees in the note, and I can see no objection to such testimony. In Wood v. Bulkley, (13 Johns. R. 486,) a note signed Christ. Bulkley, was held to prove an averment of a note made by Christopher Bulkley, it being proved that the defendant usually abbreviated his name in that manner.
This case does not come within the principle of the case of the Manhattan Company v. Ledyard, (1 Caines, 192.) When an act is done by one of a firm, in the name of the firm, then it is proper to aver the partnership; and evidence that one of the firm made an instrument, using the partnership name, Is sufficient to support an averment that the firm made the *219instrument. When, therefore, a note is made payable to a firm, evidence that the plaintiffs compose the firm to whom the note is made, is sufficient to rebut any objection of a variance arising from the fact that it is not made payable to the plaintiffs by their individual names.
Judgment for plaintiffs.