[After stating the facts as above.]—It does not appear from the record that any co-partnership ever existed under the name of “ L. Arnstaedt,” but it was shown on the trial that one Louis Arnstaedt had carried on business in this city prior to 1882 under the style of “ L. Arnstaedt.” The plaintiffs cannot justify their proceedings under the “ Act to prevent persons from transacting business under fictitious names,” passed April 29th, 1833 (L. 1833 c. 281). There was at that time no person engaged in the business to represent an actual partner or partners. For the same reason there could be no continued use of the co-partnership name under chapter 400 of the Laws of 1854.
But chapter 561 of the Laws of 1880 seems to meet the case. The first section of that act provides that—
“ Section 1. In case any resident of this state shall die who, at the time of his death, and for a period of five years or more immediately prior thereto, was conducting or car-lying on, in his sole name, any business in this state, the right to use the name of said deceased, for the purpose of continuing and carrying on such business, shall survive, and in all cases where the right hereby given is exercised, such right to the use of such name shall form a part of the personal estate of such deceased, and shall pass and be disposed of and accounted for as such.”
By tlie act last referred to, allowing the name of a deceased person to be used in carrying on the business which survived him, and making the use of such name a part of his personal estate, it is evident that the legislature intended
The certificate above referred to shows that the plaintiffs had succeeded to the business of the deceased, continuing the use of his name in their co-partnership by permission of the legal representative of the deceased.
The act of 1880 is entirely independent of the previous acts of 1833 and 1854 so far as the use of the business name of a deceased person is concerned. The certificate filed was in conformity with the statute, and was constructive notice to all parties as to the formation of the co-partnership and the members thereof.
The statutes above referred to, being penal in their nature, should be strictly construed (Zimmerman v. Ehrhard, 83 N. Y. 74).
In the cases of Lunt v. Lunt (8 Abb. N. C. 76); Arnold v. Lane (13 Abb. N. C. 73), it did not appear that any certificate had been filed by the parties carrying on the business under a co-partnership name.
For the reasons above stated, I think the judgment of the General Term should be reversed, and that of the Special Term should be affirmed, with costs.
J. F. Daly, J., concurred.
Van Hoesen, J., dissented.
Judgment reversed, with costs.