Lessem, Bro. & Co. v. Wilson ( 1876 )

Day, J.

The only point made is that the affidavit of verification does not show that Isaac Lessem is a member of the firm of of S. J. Lessem, Bro. & Co., or that he is one of the plaintiffs in the action. It is to be observed, however, that the account with the affidavit attached thereto is referred to in the petition and made a part of it, so that the petition shows that Isaac Lessem is a member of the firm of S. J. Lessem, Bro. & Co. It is said, however, that the Isaac Lessem who makes affidavit to the account, may be another person than the Isaac Lessem who verifies the petition. This is true. And appellant might, with the same propriety, have insisted that the firm of S. J. Lessem, Bro. & Co., referred to in the account, is a different firm from S. J. Lessem, Bro. & Co., the plaintiffs, for that they may be different is equally true. But in the absence of proof to the contrary, the law presumes the firm to be the same, and makes the same presumption respecting the individual. If John Jones sues as plaintiff, and the petition is verified by John. Jones, it would be sacrificing substance to shadow to hold the verification bad because it failed to state that John Jones was plaintiff. That case is this.

Affirmed.