
    Henry L. Joyce, Respondent, v. Edwin Hawley and Justus H. Van Wie, Appellants.
    First Department,
    June 11, 1909.
    Partnership — when parties cannot be held as partners — principal and •agent — broker’s action for commissions.
    Even though joint owners of property, hold themselves out as partners when in fact they are not such, they cannot be held as partners by one who did not act 'in reliance upon the representation.
    Broker’s action for commissions in effecting a :sale of tugboats. On all the evi- ' dence, held, that the plaintiff was not entitled to recover.
    Houghton, J., dissented, with memorandum.
    Appeal by the defendants, Edwin Hawley and another, from a judgment of the Supreme Court in' favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day. of December, 1908, upon the verdict of a j'ury, and also from an order entered in said clerk’s office on the same day denying the defendants’ motion for a new trial made upon the minutes.
    
      John B. Stanchfield, for the appellants.
    
      John J. Delany, for the respondent.
   Scott, J.:

The defendants appeal from a j'udgment in plaintiff’s favor and an order denying a motion for a new trial. The action is for commissions claimed by plaintiff for effecting the sale of three tugboats to the Central Railroad of Hew Jersey. The complaint alleges that defendants were copartners under the firm name or style of Yan Wie’s Towing Line, and other allegations of the complaint seem to indicate an intention to hold. the. defendants as1 copartners, although the allegation as to the ownership of the tugs is not that they were owned by the copartnership, but that they were owned by defendants j'ointly. The allegations as to the request to plaintiff to sell the boats, and the promise to pay him therefor charge the defendants as copartners. The copartnership was denied by the answer and it was clearly shown upon the trial that no such" copartnership existed! The plaintiff at the trial made no attempt to amend' in this regard, and does not claim now that he established by any direct proof the fact of copartnership, but attempts to fall back upon an alleged holding out of themselves by defendants as copartners. Of this we can find no evidence in the case, and if there was it would be unimportant because the plaintiff does not appear to have done anything in reliance upon the supposed partnership. Apart from this question, however, we are unable to find any evidence of an express promise to pay plaintiff a commission for effecting a sale of these tugs, or anything to justify the implication of such a promise. " The plaintiff was a stockholder and the manager of the Manhattan Lighterage and 'Transportation Company, in which the defendant Hawley was a stockholder and vice-president. That company owned a large number of lighters, derricks, etc., which it used in its business. It seems also to have used in connection with its business the three steam tugs in question. Two of these tugs were owned by the defendants jointly, and one was owned by the defendant Van Wie conjointly with his brother, Hawley having1 no interest in it. At the instigation of Hawley plaintiff negotiated a sale of the property of the Manhattan Lighterage and Transportation Company to the Central Railroad Company of New Jersey. It has already been decided that he is entitled to no commission for negotiating this sale. (Joyce v. Manhattan Lighterage & Transportation Co., 126 App. Div. 947.) In the course of these negotiations Hawley instructed plaintiff to include the three tugs in the sale. This was done. It is not claimed that Hawley made any specific promise to pay a commission on the sale of the tugs. Such a promise is sought to be implied from the direction to include them in the sale. We think that no such implication arises. The sale of the tugs was a part of sale of the lighterage company’s equipment. The whole transaction was treated as a single one throughout. There is nothing from which we can infer that there was present in the minds of either plaintiff or defendants any idea that the sale of the tugs was a separate and distinct transaction, or that plaintiff was to receive a separate compensation for effecting their sale.

The judgment and order appealed frona must be reversed and a new trial granted, with costs to the appellants to abide the event.

Ingeaham, McLaughlin and Claeke, JJ., concurred; Houghton, , J., dissented.

Houghton, J.

(dissenting):

Although the plaintiff was not. entitled to any commission for selling the property of the Manhattan Lighterage and- Transportation Company, I think in a proper action that he would be entitled to compensation for effecting a, sale of the individual property of officers and stockholders of that company. The plaintiff was manager of, the corporation, and the sale which he- effected for it was held to come within -his duties as such, and hence he was not. entitled to extra-compensation by way of commission.. Ho-such objection can be urged to his claim for commissions in selling the individual property of officers and stockholders.

Technically the plaintiff -is wrong in his allegation as to partnership, but for the purpose of sustaining the judgment the Complaint could be amended .in -that respect. I think such a disposition should be made and the judgment affirmed.

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