
    John E. Hagmayer, Respondent, v. Leopold Armbruster, Defendant, and Henry Gunther, Appellant.
    (City Court of New York, General Term,
    June, 1901.)
    •Judgment — Beversed without an exception to the charge.
    YPhere the verdict, in an action for goods alleged to have been sold to a firm of two partners, was not supported by the evidence and the appellate court considered that the jury were misled either by their own assumptions as to the law of the case or by the charge of the trial court as to the liability of both defendants, the court reversed the judgment, although the sole defendant answering did not except to the charge made.
    r Appeals from a judgment entered upon a verdict for $174.36 "for the plaintiff, and from an order denying a motion for a new trial. Action- to recover $168 for goods alleged to have been sold the defendants as partners, between July 8,1899, and October 20, 1900 — amounting to $936, on which $768 had been paid, leaving a balance of $168. The partnership created in October, 1898, was apparently dissolved by an. agreement executed July 13, 1899. The statements of account referred to in the opinion were made by the plaintiff to “ L. Armbruster.” The plaintiff testified that he himself made deliveries on July 8 and 12, 1899, amounting to $58, and that the others were made by a person, not produced on the trial. The defendant Gunther did not except to the charge quoted in the opinion. The defendant Armbruster did not answer or demur.
    Max D. Steuer, for appellant Gunther.
    Alfred Beekmann (Francis W. Russell, of counsel), for respondent.
   Hascall, J.

It appears to us that the allegations of the defendants were quite fully corroborated upon the trial by the facts, exhibits, and circumstances shown by the plaintiff himself, and that the burden of proof was not sustained. The verdict was not only clearly against the weight of evidence, but it seems that the jury were misled, either by the charge of the learned court below, or by the assumption, on their part, that statements of account rendered to one of the defendants, in his individual name, were sufficient to carry evidence of liability against both of them as partners.

The court charged “ Row, unless they can show that the balance of $168 applies to the two deliveries, for which the plaintiff claims his charge, then you must find as I have stated. If you find that both of these deliveries were not paid for in the payment of $768, then you can find against both of the defendants for those two deliveries.” This was manifestly not only prejudicial to the defendants, but was error in law, because, if sale and delivery were never made to Gunther, nor to the firm of which he was a member at the time, and plaintiff had knowledge of dissolution of defendants’ firm, plaintiff could, in no event, recover. Schwab v. Elias, 2 Civ. Pro. 340.

Judgment and order appealed from should be reversed and a new trial ordered, with costs and disbursements to appellant to abide the event.

Conlan and O’Dwyer, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  