
    William B. Franklin and George Isham Scott, Respondents, v. Joseph Leiter, Appellant, Impleaded with Joseph H. Hoadley and Cyrus Field Judson, Defendants.
    First Department,
    March 22, 1912.
    Trial—separate trial of issue — liability as partner — evidence — judicial notice.
    Where judgments for the plaintiff in an action against the members of an alleged partnership have been reversed after three successive trials owing to difficulty in charging the jury properly as to whether one of the defendants was in fact' a partner and for the admission of evidence incompetent against him, unless he was a partner, but competent against other defendants, the court, under the authority of section 967 of the Code of Civil Procedure, may in its discretion grant a separate trial of the issue as to whether the defendant was a partner.
    The Appellate Division may act on knowledge based upon the record on ■ former appeals of which it takes judicial notice.
    Separate trial of the issue aforesaid should not be denied because the motion was not made until the case had been thrice tried, as the futility of the former trials justified the motion.
    Appeal by the defendant, Joseph Leiter, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of February, 1912, denying the said defendant’s motion for a separate trial of the issues as to his partnership with the other defendants.
    
      
      Charles Thaddeus Terry, for the appellant.
    
      Edmund L. Mooney, for the respondents.
   Scott, J.:

The action is to recover losses sustained by plaintiff as the broker of a pool or partnership, said to have been composed of appellant, Joseph H. Hoadley and Cyrus Field Judson, which was engaged in the year 1902 in dealing speculatively in a certain stock. A sharply contested issue in the case is whether or not appellant was in fact a partner or coadventurer with the other defendants and, therefore, liable as principal for the orders given by them.

The action has been tried three times and has each time resulted in a judgment against all the defendants, and each judgment has been reversed in this court. (See Franklin v. Hoadley, 115 App. Div. 538; 126 id. 687; 145 id. 228.) Each trial has taken a considerable time and the greatest difficulty has been found in so instructing the jury and qualifying the admission of evidence, competent against Hoadley but incompetent against appellant unless he was a partner, as to fairly try the question of partnership.

The appellant’s motion for a separate trial of the question whether or not he was a partner is made under section 967 of the Code of Civil Procedure, which gives sufficient authority for the motion if in the discretion of this court it should be granted. (National Exchange Bank v. McFarlan, 13 N. Y. Supp. 202; memo, rep., 59 Hun, 618.) While we scarcely share in appellant’s optimistic belief that the trial of this issue will be very brief, still we consider that in the interests of justice the motion should have been granted. From our knowledge of the case, based upon our own records of the former appeals, of which we may take judicial notice, we are persuaded that it will be very difficult, if not almost impossible, to arrive at a satisfactory and just result by continued attempts to try the cause upon the lines which have heretofore prevailed. At all events the determination as to appellant’s liability as a copartner should go far to shorten and simplify the trial of the remaining issues in the case. Under the circumstances it is not a valid objection to the motion that it was not made until after the cause had been thrice tried. It is the very fact of these three futile efforts to try all the issues together which justifies the motion.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted. Order to be settled on notice. ■  