29 F.Supp. 52 (S.D.N.Y. 1939), Abraham v. Selig

Citation:29 F.Supp. 52
Party Name:ABRAHAM et al. v. SELIG et al.
Case Date:July 21, 1939
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 52

29 F.Supp. 52 (S.D.N.Y. 1939)

ABRAHAM et al.


SELIG et al.

United States District Court, S.D. New York

July 21, 1939

McManus Ernst & Ernst, of New York City (Bertram S. Rosenbaum, Walter E. Ernst and Lester D. Melzer, all of New York City, of counsel), for Howard M. Ernst.

Glass & Lynch, of New York City (Jerome Weinstein, of New York City, of counsel), for defendants.

GODDARD, District Judge.

It is true that plaintiffs Howard M. Ernst and Bertram S. Rosenbaum, describe themselves as 'co-partners doing business under the firm name and style of Ernst & Co.', but a partnership is not strictly a legal entity.

Plaintiff's, Ernst and Rosenbaum with others, are suing in their individual capacity to enforce rights which they assert they have as joint owners of the assets of Ernst & Co., a co-partnership. They are parties to the suit and have submitted themselves individually to the jurisdiction of this court. While their counsel contend to the contrary they have submitted no authority which supports such contention.

The question as to whether the plaintiffs have submitted themselves to the jurisdiction of the court in their individual capacities is quite apart from that as to whether a counterclaim against individual partners may be asserted in an action upon a partnership claim. This latter question is governed by the New Federal Rules of Civil Procedure, particularly by Rule 13, 28 U.S.C.A.following § 723c, which is very liberal in the interest of avoiding a multiplicity of suits, and many of the former procedural limitations have been abolished; and Rule 13(c) places no procedural limitations on the type of claim which may be interposed as a counterclaim. The counterclaim asserted against any opposing party may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief different in kind from that sought by the opposing...

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