
    Whitney v. Wardell.
    
      (Supreme Court, General Term, Third Department.
    
    February 4, 1891.)
    Evidence op Partnership.
    The only evidence that defendant had been the partner of one 0., deceased, was testimony that C. had told witness, but not in the presence of defendant, that defendant was his partner. Held, that this was hearsay, and inadmissible against defendant.
    Appeal from Ulster county court.
    Action by Oliver B. Whitney against Lawrence E. Wardell. There was judgment for plaintiff, and defendant appeals.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      John Rush, '(A. T. Clearwater, of counsel,) for appellant. Eldorus Dayton, (A. H. Van Burén, oí counsel,) for respondent.
   Learned, P. J.

This is an action to recover against defendant, as surviving partner of the firm of W. J. Caywood & Co., on a promissory note of $200 made by said firm. The action was commenced in a justice’s court, and after judgment there an appeal was taken to the county court, where it was retried. A judgment was recovered for the plaintiff, and from that judgment, and from an order denying a new trial, the defendant appeals. The only question was whether the defendant was a member of that firm. There was evidence to go to the jury on that point, and, though the evidence was conflicting, the county court properly refused, so far as we see, a new trial, on the ground that the verdict was against the evidence. It was, however, a closely-contested question of fact, and the defendant was entitled to have no other evidence admitted than such as legitimately bore on the issue. The plaintiff asked one of his witnesses, (Allerton:) “Did you ever hear Walter J. Caywood say anything about Warden’s having an interest in the firm?” The defendant objected, on the ground that the statement was not binding on him unless made in his presence. The objection was overruled, and defendant excepted. The witness answered: “I had no conversation except to ask him who was his partner, and he said, «Lawrence E. Wardell.’ ” This statement was no evidence against the defendant. There was a sharp conflict between plaintiff’s evidence of defendant’s admission that he was a partner and defendant’s denial of such admission; hence it was most important that no hearsay or inadmissible evidence should be received. We do not see how that statement of Cay wood’s, out of court, and not in Warden’s presence, could be evidence against Wardell. Some other questions are raised on the appeal, which need not be discussed here. But, in a case where the question of fact was so sharply contested, this improper evidence may have done harm to the defendant. A jury might very naturally think that Cay wood’s statement that Wardell was his partner would bind the firm, like the act of a partner, and that, hence, Wardell was by the weight of evidence shown to have been a partner. The judgment and order must be reversed, and a new trial granted, costs to abide the event. All concur.  