
    ELIZABETH THOMPSON, Respondent, v. JOSEPH EGBERT, Appellant.
    
      Partnership — title to lands of, taken in name of a pa/rtner —r Equitable defense—when allowed, in a legal action.
    
    This action was brought by the plaintiff as sole devisee of John 0. Thompson, deceased, to recover certain lands in the possession of the defendant. The defendant alleged in his answer that the land was bought as partnership property by J. 0. Thompson and defendent", and that the deed was taken in the name of J. 0. Thompson, which was the firm name; that he had paid his share toward the purchase; that he was in possession as partner, and had expended a large amount in improving the land. At the trial, the justice excluded proof of these allegations; held, that this was error.
    Appeal from a judgment in favor of the plaintiff. The facts are stated in the opinion.
    
      George P. Avery, for the appellant.
    It was necessary to show that appellant was in unlawful possession. (53 Barb., 155.) An equitable defense is legitimate, in an action of ejectment. (Code, § 150 ; Carr v. Carr, 52 N. Y., 251; Fiedler v. Darrin, 50 id., 438 ; Ryan v. Dox, 34 id., 307; Murray v. Walker, 31 id., 399 ; Phillips v. Gorham,, 17 id.. 270.) The statute of frauds does not apply. A partnership in lands may be proven by parol, (Chester v. Dickerson, 52 Barb., 349; Hiscock v. Phelps, 49 N. Y., 98; Garrett v. Schoeffer, 47 id., 655; Sage v. Sherman, 2 id., 423.)
    31 Wesfcí’yefó, for the' respondent.
   Barnard, J.:

The plaintiff is the widow of John 0. Thompson, and sole devisee under his will, of all her husband’s real estate. As such, she brings this action to dispossess the defendant from certain lands, which are situate in Richmond county, and which her husband took by deed from Abram Hallock.

The defendant, in his answer, set up as a defense, that the property was bought as partnership property, by John G. Thompson and defendant, as partners, and the deed was. taken in the firm name, which was John C. Thompson. That the defendant had paid his share toward the purchase, and that he was in possession as partner, and had paid a large amount in the improvement of the land. Upon the trial, the justice excluded the proof offered by defendant, to show a partnership in the lands by parol, and also to establish the other averments contained in the answer. We think this erroneous.

It is well established now, that an equitable defense may be set up to a legal action. This is not questioned by the respondent.

His claim is that the defendant asks no affirmative relief, based upon his equitable claim. This is true, but if his answer is proven, he is not wrongfully in possession as against the plaintiff, and by reason thereof this action fails. Indeed, I do not see what equitable relief he could ask, as against the plaintiff. She was simply a devisee of her husband’s lands. She had no interest beyond this property, in the partnership or its assets, or in its liabilities. She could bind no one by a litigation upon these questions. She alone brings this action, and when the defendant meets her claim, he does all that is required of him in the action.

The judgment should be reversed and a new trial granted, costs to abide event.

Present — Barnard, P. J., and Taloott, J.

Judgment reversed and new trial granted, costs to abide event.  