
    David Schultz, Respondent, v. Max Berger et al., Appellants.
    Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, fourth district, borough of Manhattan.
    Maurice H. Gotlieb, for appellants.
    A. B. Jaworower, for respondent.
   Per Curiam.

This is an. appeal by the defendant Carrie Berger from a judgment rendered against her in a Municipal Court. The pleadings were oral, and the complaint was for goods sold and delivered. It was sought to hold the defendants jointly, but it was not in terms alleged that they were partners, or that the defendant Max Berger acted as agent for his wife. The plaintiff did not produce any evidence of a partnership between the defendants, and it appeared that he had for a long time sold goods to the defendant Max Berger and rendered bills to him under the name of M. E. Berger, the bill of particulars in this very case being in the form of a bill against M. E. Berger. Both defendants swore positively that there was no partnership between them, each pursuing a separate business. While some of the circumstances under which the business was carried on, coupled with the relationship of the parties, warrant a suspicion that they may really be copartners, there is no proof of the fact, and a mere suspicion cannot be allowed to prevail against their positive and uncontradicted testimony. There was no evidence to justify a judgment against the appellant Carrie Berger and as to her the judgment must be reversed and a new trial ordered, with costs to her to abide the event.

Judgment as to Max Berger affirmed, with costs.

Present: Tbttax, P. J., Scott and Dugbo, JJ.

Judgment reversed as to appellant Carrie Berger and new trial ordered, with costs to abide event. Judgment as to Max Berger affirmed, with costs.  