
    Lewis Crager, Resp’t, v. Robert Reis, Impl’d, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 5, 1891.)
    
    Partnership—Assignment op claim against—Release op one partner.
    This action was brought upon a claim for goods sold by S. & Co. to defendants as partners, which had been assigned to plaintiff in the name of the firm by the junior partner. The indebtedness of the firm was not denied, but defendant Reis introduced in evidence and proved the execution by 8. of a release discharging him from said claim, which was dated prior to the assignment to plaintiff. There was no proof as to the date of delivery of the release. Held, that in the absence of such proof the presumption that it was delivered at its datemust control, and that, therefore, plaintiff acquired no right of action against Reis under his assignment; that the fact that the release was acknowleged subsequent to such assignment does not affect the question in the absence of proof that S. had possession thereof subsequent to its date.
    Appeal from judgment of the seventh judicial district court, in an action to recover on an assigned claim for goods sold and delivered.
    
      Hayes & Greenbaum, for resp’t; Sumpter & Platzek, for app’lt.
   Bischoff, J.

This was an action brought by the against Eobert Eeis and M. A. Tynberg to recover the balance due for goods sold and delivered by the firm of M. Schlessinger & ■Co. to the defendants, comprising the firm of M. A. Tynberg & Co., the plaintiff claiming under an alleged assignment from M. Schlessinger & Co. The complaint alleged the copartnership of the defendants and the copartnership of Max Schlessinger and Emile Lux; that Schlessinger & Co. sold and delivered to Tynberg & Co. merchandise of two hundred and twenty-one dollars and nine cents ($221.09), of which one hundred and thirty-two dollars and sixty-four cents ($132.64) had been paid, leaving a balance of eighty-eight dollars and forty-five cents ($88.45) with-interest

The complaint further alleged that prior to the commencement of this action Schlessinger & Co. had assigned the claim for the balance due to the plaintiff. The defendant Eeis, by his answer, did not controvert the allegations of copartnership, and he was, therefore, precluded upon the trial from offering any testimony in contradiction of the allegations in the complaint that the defendants were copartners under the firm name of M. A. Tynberg & Co., and that Max Schlessinger and Emile Lux were copartners under the firm name of M. Schlessinger & Co. The defendant Eeis denied all other allegations of the complaint, and as a particular defense asserted that prior to the commencement of this action Schlessinger & Co., for valuable consideration, had forever released and discharged him from all liability upon the claim in suit. Upon the trial one Sigismund Tynberg, a son of the defendant Tynberg, was called as a witness for the plaintiff, and testified that he was the manager of the business of ,M. A. Tynberg & Go.; that he kept their books ; that they had purchased merchandise from Schlessinger & Go. to the amount of two hundred and twenty-one dollars and nine cents ($221.09), of which only the sum of one hundred and thirty-two dollars and sixty-four cents ($132.64) had been paid, and that there was due from said Tynberg & Go. to Schlessinger & Co., for the balance of the claim, the sum of eighty-eight dollars and forty-five cents ($88.45), with, the accrued interest thereon. No attempt was made on behalf of defendants to controvert this testimony, and the claim in suit was therefore sufficiently established. The plaintiff also produced- in evidence an alleged assignment of the claim, dated April 13, 1889, signed M. Schlessinger & Co., which he attempted to prove by the testimony of Sigismund Tynberg, who testified that he saw the assignment executed by Emile Lux and delivered to the plaintiff on the day of its date.

■ The defendant Reis, on the other hand, offered in evidence a paper, under the hand and seal of Schlessinger & Co., dated September 12, 1888, executed in the name of Schlessinger & Co., by Max Schlessinger, and purporting to release and discharge the defendant Reis from all claim which said Schlessinger & Co. had against him individually or as a member of the firm of M. A. Tynberg & Co. The execution of this release was proved by one Silberstein, the subscribing witness, who testified that he saw it executed by Max Schlessinger on the day of its date. He also testified that he saw it delivered, and whether or not delivery took place on the day it bears date, or upon a subsequent day, does not appear. We have, therefore, to consider in this case only the effect of the alleged assignment under which the plaintiff claims and the instrument under which the defendant claims to be released.

It is elementary that, in the absence of proof to the contrary, a deed in the possession of the grantee must be presumed to have been delivered on the day of its date. Best on Evidence, § 402 ; Abbott’s Trial Evidence, 508.

Applying this presumption to the facts of the case before us, and there being no proof of the actual time of its delivery, we are constrained to hold that the instrument discharging the defendant Reis from all liability to Schlessinger & Co. growing out of their claim against Tynberg & Co. was delivered on September 12,1888, and, therefore, prior to the alleged assignment to the plaintiff, which is dated April 13, 1889.

And thus the plaintiff under the alleged assignment to him. could not thereby have acquired any cause of action growing out of the indebtedness of Tynberg & Co. to Schlessinger as against the defendant Reis. If the plaintiff meant to contend that the release of Reis was actually delivered upon a day subsequent to its date and subsequent to the assignment to him, it was incumbent upon him to introduce evidence to that effect and in this he has utterly failed. The fact that the acknowledgment to the release was taken on a day subsequent to its date and subsequent to the alleged assignment to the plaintiff, to wit, May 29, 1889, is not sufficient to destroy the presumption of delivery on the day of thé date of the instrument, since it does not- appear from such acknowledgment that on the day of the date therfeof Schlessinger was in possession of the instrument; and without some evidence that Schlessinger continued to be in possession of the instrument subsequent to the day of its date we cannot find that it was delivered npon a day other than such da}'.

The judgment should be reversed, with costs to abide the event, and a new trial ordered.

Bookstayer, J., concurs.  