
    Philip Reisman, Respondent, v. Stanley L. Silver et al., Appellants.
    (Supreme Court, Appellate Term,
    October, 1905.)
    Estoppel in pais — Reliance by person claiming estoppel is essential — Evidence — Weight and sufficiency—When admission does not countervail direct testimony.
    It is essential to an estoppel m pais, that the party to whom a statement is made shall rely on it and shape his conduct thereby.
    In an action against a partnership for wrongful discharge, the testimony of plaintiff that, when he was employed, one of the partners in introducing the other defendants said: “These are the two other members of the firm”, does not counterbalance the positive testimony of one of the other defendants that there was another partner who was not made a party defendant; and, as it is inconceivable that plaintiff was led to make his engagement because the three defendants and no one else composed the firm, the statement made to him did not raise an estoppel.
    Appeal by the defendants from a judgment of the Oity Court of the city of Hew York, entered in favor of the plaintiff, upon the verdict of a jury.
    Bernard Edelhertz, for appellants.
    Engel, Engel & Oppenheimer (J. B. Engel, of counsel), for respondent.
   Scott, J.

Plaintiff sues for a wrongful discharge from the employ of the firm of S. L. Silver &.Co., of which, as he alleges, the defendants are the sole co-partners. The evidence that a contract for any definite time was ever made is of the slightest, but there was, perhaps, enough to hold a verdict upon. The main defense relied upon is that there is a defect of parties defendant in that one, Joseph A. Rink, was a co-partner when the alleged agreement was made and when the alleged breach occurred. The issue was fairly tendered by the answer and submitted to the jury as one of the questions to be decided by them, the justice correctly charging that, if Rink was a member of the firm, the action could not be maintained against his co-partners alone. The only positive evidence upon the point was that of the defendant Rendigs, who swore that Rink was a co-partner and was still living. The plaintiff testified that when he was' employed one Weiss, then a co-partner, introduced him to the defendant Silver and one Strauss and said, “ These are the two other members of the firm.” Weiss afterward retired from the firm and Rendigs took the place of Strauss who also retired. This testimony is absolutely all that plaintiff relies upon to maintain the contention that Rink was not a member of the firm. It is not easy to see that it has any probative force whatever on this question, and it certainly does not counterbalance the positive evidence on the part of the defendants. The court, however, chargd the jury as follows: “If, at the time of the original conversation with Weiss, he (Weiss) in the presence of Strauss and Silver said ‘ These are the two other members of the firm,’ and represented to the plaintiff that they constituted the firm, it was a partnership by estoppel, and it matters not whether Rink was a member of the firm or not.” This charge was duly excepted to and constitutes clear error. The question at issue presented no ground for the application of the doctrine of estoppel. If either Silver or Strauss were seeking to avoid all liability to plaintiff on the ground that they, or one of them, were not members, or a member, of the co-partnership when plaintiff was employed, the charge might have been sustained. The authorities cited by the respondent go only to this length. The defendants do not, however, present this defence. They concede that Silver and Strauss were members of the firm, but say that Rink was also a member. They do not seek to avoid responsibility on the ground of non-partnership, but merely say that, if liable, they are jointly liable with Rink. If Weiss had said, in distinct terms, “ no one but Silver and Strauss and myself are members of the firm,” he would not have estopped himself, or Strauss or Silver, from asserting, when sued, that Rink was also a member and jointly liable with the other partners. The doctrine of an estoppel in pais is that where a party, by conduct or words, represents one state of facts, knowing or intending that the other party will or shall rely upon them as true, and shape his conduct by them, which representations are untrue, the party making them shall not thereafter be allowed to show their untruth, or contradict the statement of fact by which he induced the action of the other party. Harbeck v. Pupin, 145 N. Y. 79. It is essential to the application of the rule, that the party to whom the statement is made shall rely upon it and shape his conduct thereby. It is conceivable that plaintiff might have been unwilling to enter upon a contract unless both Silver and Strauss were members of the firm, and, therefore, responsible to him; and consequently it may well be that, assuming plaintiff’s evidence to be true, Silver and Strauss would be held to be estopped to deny their membership in the firm. It is not conceivable, however, that plaintiff was led to make his engagement because only Weiss, Silver and Strauss, and no one else, were members of the firm; and, consequently, they are not now estopped to plead that Rink was also a member. The statement said to have been made by Weiss, might have greatly influenced the terms upon which plaintiff should have been allowed to amend, or discontinue, when he was apprised by the defendant’s answer that Rink was a co-partner and, therefore, jointly liable with them; but it could not properly be used as an estoppel to prevent the plea in bar interposed. The error was serious and probably led to the verdict, since there was no credible evidence in the case to contradict the positive proof of Rink’s co-partnership.

It follows that the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Bischoff and Fitzgerald, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  