The cause of action was assigned to a partnership, consisting of three partners. This action was brought in the name of two of them. The non-joinder does not appear in the complaint, and is not set up in the answer.
*39The Code of Procedure, section 144, subdivision 4, permits a defendant to demur for defect of parties, if such defect appears in the complaint. If it does not appear on the face of the complaint, he must take the Objection by answer. Otherwise it is waived. (§§ 147, 148.) Helice, if the cause of action be in several parties, a less number than the whole may recover, unless the defendant chooses to set up the non-joinder as a defense in his pleading.
Section 64, subdivision 15, of the Code makes the provisions “ respecting parties ” to actions applicable to justices’ courts.
It seems to me that sections 144, 147 and 148 above cited do respect parties to actions. For, under the old practice, the joinder of all proper parties as plaintiffs in actions ex contractu was necessary. Else, on the trial, the plaintiff might be nonsuited, because he had not proved the contract which he had alleged. Now, non-joinder is only a matter of affirmative defense.
Again, in justices’ courts, as well as in coúrts of record, the Code established a new system. The old forms of action and of jffeading are abolished, and simpler forms arc adopted. It is not necessary that we should retain the rules of the old practice, unless they are in harmony with the new. One reason for the rule that, in actions ex contractu, the plaintiff, on the general issue, might be nonsuited at the trial for non-joinder, was that causes of action were generally not assignable. Hence the plaintiff was always the original party to the contract. If, then, thei’e was a non-joinder, the proof would show a different contract, as to parties, from the allegations of the. declaration. Now, causes of action are generally assignable. And we may see in the present case that the contract is proved according to the allegation. The only defect is that the complaint alleges an assignment of it to two persons. In fact, it was assigned to them; but to another, also.
Again; there is no reason why, on this point, a new and convenient rule should be established by the Code as to courts of record, and the old and mischievous rule should be allowed to femain in justices’ courts. In such matters, the practice in the two classes of courts should be similar, unless the contrary intent is plain from the Code. An appeal may be taken in many cases and a new trial had in the County Court on the same pleadings; and it is desirable, therefore, that pleadings should be substan*40tially construed in the same way in justices’ courts as they would be in a case originally brought in the County Court. If the defendant in a Justice’s Court desires to insist on the defense of non-joinder of parties plaintiff, he can set this up in his pleadings. I. .do not think that he should be allowed to take advantage of ;sueh a defense under, a mere general denial.- He can, in fact, seldom,,- if over,- be injured by the non-joinder. If he means to insist .upon it, ho should notify the plaintiff by pleading, as he must do in a pourt of record. ... '
,. In Rice v. Hollenbeck (19 Barb., 664), it was held that, as the defect of .parties plaintiff in a Justice’s Court appeared in the complaint, the defendant might take advantage.of this on a motion for' a nonsuit. I cannot agree with that view, although it is not. the present case. The opinion in that case, implies that the defendant could not have demurred successfully, because, in fact, -the complaint contained a cause of action. To say that the complaint contained a cause of action seems to me inconsistent with .the. decision that that plaintiff should have been nonsuited. On the trial, the plaintiff proved the very facts which were set up in his complaint. If the complaint contained a cause of action, then the plaintiff proved a cause of action on the trial, and should not have been nonsuited. On the other hand, if, upon proof on the trial of the facts stated in the complaint, the plaintiff ought to have been nonsuited, then the complaint could not have stated a cause of action. In other words, if a defect of parties plaintiff appearing on the trial be a ground of nonsuit, such defect appearing in the complaint must be ground of demurrer..
In my opinion, the justice, in the present case was right in refusing to nonsuit. The judgment of the County Court should be reversed, and that of the justice affirmed, with costs.