Empire Artists Materials v. Small

Close issues of fact are presented as to whether the artists’ articles in question, furnished to defendant wife, are necessaries, and if not, whether they were purchased for the defendant husband’s account, which issues should be determined upon a trial. Moreover, while section 222-a of the Civil Practice Act specifically authorizes a partnership to sue or be sued in its partnership name, the fact that it is a partnership and who the persons are that comprise such a partnership should be established upon the trial or in the moving papers for summary judgment. It was therefore error to order summary judgment in the absence of such proof of the partnership.

The judgment and order should be reversed, with $10 costs, and the motion for summary judgment against defendant Sylvia Carewe Small denied.

Hoestadter and Aurelio, JJ., concur; Steuer, J. P., dissents and votes to affirm.

Judgment and order reversed, etc.