
    Kemp et al. v. Peck.
    
      (Supreme Court, General Term, Third. Department.
    
    February 4, 1891.)
    1. Appeal—Re view—Conflictin e Evidence.
    Where there is a conflict of evidence on the trial before a referee, the court, on appeal, will not interfere with the finding.
    3. Account Stated—Evidence.
    Plaintiff seeking to recover against the defendant, as survivor of a partnership, on an alleged account stated, failed in his proof of copartnership. Held that, in the absence of proof establishing a joint liability, defendant was not solely liable on the account presented to him, though he had retained it without objection.
    Appeal from judgment on report of referee.
    Action by Oscar P. Kemp and John Kemp against Alexander D. Peck, as survivor of an alleged copartnership of Alexander D. Peek and George A. Peck, George A. having died. The complaint alleges that the plaintiffs were copartners, and that as such they sold the goods charged in the complaint to George A. Peek and A. D. Peck at their special instance and request, but does not in terms allege that they were partners; alleges the death of George
    
      A. Peck before the commencement of this action. The defendant denies each and every allegation of the complaint, except the death of George A. Peck. On the trial, the plaintiffs proved various declarations of George A. Peck and Alexander D. Peck, tending to prove that they were partners, which was met by testimony offered by the defendant tending to deny the existence of that relation. The plaintiffs also sought to establish defendant’s liability by proof of an account stated; which was also met by the evidence tending to deny the same. The referee reported in favor of the defendant. From the judgment entered thereon plaintiffs appeal.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      John Lansing, for appellants. V. P. Abbott, for respondent.
   Mayham, J.

The referee found in this case, upon the conflicting evidence as to the existence of a copartnership between Alexander D. Peck and George A. Peck, that they were not, at any time during the accruing of the account on which this action was brought, copartners. There is certainly evidence to support this finding, and sufficient, we think, to uphold it. The evidence on this subject may be regarded as somewhat equally balanced. But in such a case, the court, on appeal, will not interfere with the finding of the trial court, upon the well-settled and sound rule that the jury or referee, required to pass upon disputed questions of fact, upon a conflict of evidence, having the witnesses be-' fore them, are better able to judge between them, as to the probable truth of the evidence, than the court on review, who sees only the record. As there is no decided preponderance in the oral evidence, and no circumstance to give added weight to the testimony offered by the plaintiffs on this subject, we see no reason for interfering with the referee’s report on that subject.

The testimony of Mrs. Peck, relied upon by the plaintiffs, was more a conclusion of the witness than a statement of facts by her, and in it she is expressly contradicted by the evidence of the defendant, Alexander D. Peck, which fairly raises a question of fact for the referee. He swears that George A. Peck worked his farm on shares; that George A. had no machinery; that he (Alexander) bought the machinery, and paid for the same; and explains how George A. Peek’s name came to be used in the mortgage. But the plaintiffs insist that the defendant is concluded in this action upon an account stated. If this account had been charged to Alexander alone, and stated to him, and he had retained the same, without objection for the time indicated by the evidence, he would be deemed to have acquiesced in its correctness as to amount, and it would be presumptively binding upon him. Avery v. Leach, 9 Hun, 106. But the referee finds that the letters “A. & D., ” the only thing in the account indicating that it was charged against Alexander D., was written over an erasure of the word “Peck, ”—a significant fact, which the referee had a right to take into account in determining whether the original'aeeount was not in the name'of George A. Peck. Nor do we think, that an account stated can be used for the double purpose of proving a partnership, as well as the amount of the claim. All the cases seem to proceed on the theory that if the account is stated between the proper parties to it, and assented to or retained so long that the assent or acquiescence in its correctness may reasonably be inferred, that the party is concluded, in the absence of fraud, from denying its correctness, (Lockwood, v. Thorne, 11 N. Y. 170;) and if either party attempts to impeach the settlement, and open the account for re-examination, the burden of proof rests upon him, (Towsley v. Denison, 45 Barb. 490.) But all this relates to the correctness of the account, and not to the liability of the person in the form in which he is sued.

If an account is presented to one person charging him as liable with some other person, as his partner, we do not think that the authorities go to the length that he will not be permitted to deny that relationship when sued upon the account. If, therefore, as in this case, the proof fails to establish a joint liability, the party to whom the account was presented would not, by reason of its, retention without objection, be solely liable on it, and, if the partnership relation was not established, of course the Arm would not be liable. The appellants raise several objections upon the evidence, and insist that the referee erred in the receipt and rejection thereof on the trial. We have carefully examined the various rulings and exceptions'upon that subject, and And no error committed by the referee in the receipt or rejection of evidence for which this judgment should be reversed. Judgment affirmed, with costs.

All concur.  