
    The Reading Braid Co., Respondent, v. John Stewart, Impleaded, Appellant.
    (Supreme Court, Appellate Term,
    April, 1897.)
    1. Appeal — Exclusion' of evidence.
    An exception to the refusal to admit postal cards in evidence cannot be held to establish error warranting a reversal of the judgment where the postal cards are not annexed to the case on appeal.
    8. Partnership — Liability of retiring partner.
    A partner who withdraws from a- firm must give notice of the dissolution to persons who have dealt with the firm, or he will be liable for their subsequent dealings with the firm if they were ignorant of such withdrawal.-
    3. Same — Service of 'notice.
    Mere testimony of a clerk that he believed that he mailed such notice is hot sufficient to relieve the retiring partner from liability.
    4. Same — Burden of proof.
    In an action against a retiring partner upon a claim arising subsequent to his withdrawal, the burden is upon him to prove service of the notice of dissolution and the date of such service.
    Reading Braid Co. v. Stewart, 19 Mise. -Rep. 431, affirmed.
    Appeal by defendant Stewart from affirmance by the City Court, General" Term, of a judgment in favor of plaintiff.
    H. A. Sperry, for appellant.
    Wilcox, Adams & Green (H. Green, of counsel), for respondent.
   McAdam, J.

The defendant Stewart and one Stunn carried on business as partners under the name of the Arlington Embroidery Works, and the action is to recover a balance due for goods sold and delivered to them between January 4th and March 16, 1895. Stewart alone defended, claiming that on February 23, 1895, he sold out his interest in the business to Sturm, and promptly gave notice of his retirement by mailing postal cards to all the creditors of the concern. The plaintiff contended that notwithstanding Stewart’s withdrawal from the firm the Arlington Embroidery Works was run as before, the old signs remaining up, and the same employees conducting the business; that there was nothing to apprise it of the alleged change, and no notice of any devolution of interest had ever reached its officers.

The appellant proved by one Mudge, an employee of the works, that Mudge had taken a list of the creditors from the books and addressed a postal card to each, informing him of the change; that the plaintiff’s name was on the list; and that the postal cards were addressed by Mudge and given to the boy to mail in the regular course of business. ' The boy testified to receiving a number of postal cards to mail, and that he believed he had mailed them; he was not sure he had mailed any, but if he had mailed any he mailed all, for it was part of his business to mail letters. He could not swear positively, however,. that he had mailed a postal card addressed to any particular individual.

Three creditors of the concern were produced, and testified that they had received postal cards. The postal cards are not annexed to the case, so that we áre ignorant of their contents, and "we have no information, either from postal marks or the testimony, as to when the alleged mailing took place. The cards received by the other creditors were offered in evidence and excluded by the trial judge. In their absence we cannot say they would have proven anything to. aid the defendant if they had been admitted; so that the exception to the refusal to admit the cards does not establish error which would warrant a reversal of the judgment. Ransom v. Wheelwright, 19 Misc. Rep. 106; 43 N. Y. Supp. 244.

The trial justice directed a verdict in .favor of the plaintiff; to which the defendant excepted.

The plaintiff was clearly entitled to a verdict for the amount of the account which had accrued to February 23, 1895, and the only question is as to the account after that date.

It is well, settled that notice of dissolution is necessary to affect persons who have dealt with a firm; that one who withdraws must give notice to them, or he is liable for their subsequent dealings with, the firm if they Were ignorant of such withdrawal. Austin v. Holland, 69 N. Y. 571; Howell v. Adams, 68 id. 314; National Shoe & Leather Bank v. Herz, 89 id. 629; Elmira Iron, etc., Co. v. Harris, 124 id. 280; Frankel v. Wathen, 58 Hun, 543;. 17 Am. & Eng. Ency. of Law, 1122; Bates on Part., §§ 611, 890; Collyer on Part. (6th ed. by .Wood), 163, note. Where persons join together and assume a name under which they do business and incur liabilities, they become jointly liable for any indebtedness thus incurred, and each continues liable so long as he remains a member and until he notifies the creditors thereof of his withdrawal therefrom. Park v. Spaulding, 10 Hun, 128.

The appellant was, therefore, bound to prove that the cards were mailed prior to March 16, 1895, when the account closed, and there is not a particle of evidence, except by inference- of the most unsatisfactory, kind, as to when the mailing was done.

If the defendant has proved that a postal card informing it of the alleged change in business had been mailed to the plaintiff about February 23, 1895, when Stewart claims to have’ sold out his interest, a presumption of notice would have been created. This the plaintiff would have been bound to rebut, and if rebutted the question whether the notice reached the plaintiff would have become one of fact for the jury. Austin v. Holland, supra ; Beakes v. DaCunha, 126 N. Y. 293; Hastings v. Insurance Co., 138 id. 473.

The defense of notice was one which the appellant in order to limit his liability was bound to establish; and as thé time of giving the notice was an all-important feature- of the defense he should have proved the date of the alleged mailing, that the issue raised might have gone to the jury for determination. In- the absence of such proof the trial justice properly directed a verdict .in favor of plaintiff;

As error Cannot be presumed, but • must appear by the’record (Hughes v. Hughes, 10 Misc. Rep. 180, 183), and it does not so appear,.the judgment must be affirmed, with costs.

Daly, P. J., and Bischoff, J. concur.

Judgment affirmed, with costs.  