
    Frederick Holler et al., Resp’ts, v. Filippa Apa et al., Def’ts. Frederick Holler et al., Resp’ts, v. Tomasso Giordano et al., Def’ts. Frederick Holler et al., Resp’ts, v. Michele Tarchini et al., Def’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 1, 1892.)
    
    1. Partnership—Agreement not acted on.
    Plaintiffs and defendant Schwehn entered into an agreement of partnership as general builders and contractors; but it appeared that said agreement was not acted on, and that defendant as to the buildings in question took the contract himself and set the plaintiffs at work thereon; received the payments and made disbursements without consulting them, and upon complaint being made by the owners discharged plaintiffs and set other men at work in their place. Held, sufficient to justify a finding that the partnership never began, and that the work in question was not done by them as partners.
    2. Account stated.
    Plaintiffs made out a" time hill for their work at defendant’s request, which he retained for some time, marking on it the German word “balance” or “rest,” and it was admitted that the time charged was correct. Held, that a finding that there was an account stated was correct.
    3. Evidence—Conclusions.
    A question as to whether certain work was done under a co-partnership-■agreement calls for a conclusion and is improper.
    Appeal by defendant, George Schwehn, from a judgment, entered in each of the three above entitled actions on the report, of a referee duly confirmed.
    
      George W. Stephens, for app’lt; Robert K. Prentice, for resp’ts.
   Bookstaver, J.

The above entitled actions were brought to-foreclose three separate mechanic’s liens on three separate houses, but all referred and tried together and the same questions are presented in each case. George Schwehn, the principal contractor, is the only party appealing. He denied that there was any indebtedness from him to the plaintiffs, and also claimed that he and the plaintiffs were copartners. The latter was the chief point relied upon by the defendant before the referee and argued on this, appeal.

On behalf of the appellant it is contended that both the making of the agreement and the existence of the copartnership is not contradicted by the plaintiffs, and that the referee erred in refusing to find, these facts. While it is true there is no evidence to show the agreement was not made, it is not correct to say there is no evidence contradicting the existence of the copartnership, if by this term is meant the actual entrance upon the execution of that agreement. For the plaintiff Frederick Holler expressly testified nothing was ever done under it, that he did the work on the houses in question for the defendant Schwehn, that'he had before that time done work for him on another house at Bedford Park. The sum of $250 was loaned by this witness to Schwehn, but he swears it was not loaned under that agreement, and it appears • from the evidence this money was used on the house in Bedford Park. He also denied that the defendant ever said anything to him about profits or about a contract on those houses. Henry Holler testified that the defendant sent his father and himself to work on the last mentioned house by day’s work and that the ■defendant afterwards sent him to work on the three houses in question, saying: “ I will pay you three dollars,” meaning three -dollars a day. It further appears that the defendant took the contracts in his own name, gave orders as to the manner of doing the work and was the only contractor recognized by the owners, who ■complained to him,- as he testified, about the way in which the plaintiffs were doing their work, and that he said to them, the plaintiffs, that he would put other carpenters on the work and finish the houses, thus substantially discharging the plaintiffs, which he •could not have been done had they been copartners with him.

There is also evidence in the case showing that the defendant throughout acted as master, and did not treat the plaintiffs as his partners. He received all payments from the owners, and did not •consult the plaintiffs as to disbursements, but made them as he •saw fit. Henry Pfeiffer testified that he worked on these houses as a carpenter; that defendant hired him, and'that he had nothing to do with the plaintiffs, and that the defendant paid him his wages. The plaintiffs afterwards made out a time bill for all their work included in the lien, admitted by defendants’ counsel on the trial to be correct as to the number of days’ work. This defendant admitted he had in his possession a week before he discussed it with Frederick Holler, and it appears that he then calculated and struck a balance, which he called a “rest;” and paid money on account of this balance, and admitted that interest was to be ■allowed on the loan. These facts, we think, were sufficient to warrant the referee in refusing to find the work was done under the copartnership agreement. That 'expressed no time when the ■contemplated .copartnership should begin or end, and the referee, ■on this evidence, was justified in finding it never began.

It is true defendant’s evidence reads smoother and is more coherent, but it does not follow that it is intrinsically more reliable. The referee had all the witnesses before him, and was in a better position to determine t'he weight which he would give to each than we can be. The testimony as to the statements of Henry Holler regarding the copartnership amounted to declarations only. Ho one acted on them. Such declarations cannot constitute a co-partnership. Cassidy v. Hall, 97 N. Y., 159. While we might have arrived at a different conclusion, we cannot say that the preponderance of evidence is so great as to authorize us to reverse the judgment on that account. Darrah v. Boys, 16 Daly, 209; 32 St. Rep., 297. It is sufficient for the respondent that the case exhibits some evidence to support the referee’s conclusions. Aldridge v. Aldridge, 120N. Y., 614; 31 St. Rep., 948.

Appellant also contends that the referee erred in finding that there had been an account stated between the parties. But the evidence shows that the bill for the work before referred to was made out at defendant’s request after the plaintiffs quit work ;■ that he had it in his possession for some time; that he then wrote on it in German the word translated “ balance ” or “rest” opposite the figures $328.25, and of this balance he afterwards paid twenty-eight dollars, and his counsel on the trial admitted that the bill was correct as to the time, and there was abundant evidence that the amounts charged for days’ work was correct, as well as the debits and credits given, and in fact the defendant at no time disputed either the time or any other item in the bill rendered. W e therefore think the referee was justified in finding on this question as he did.

All the other questions raised on this appeal, except as to the admission and exclusion of evidence, rest on these two grounds and fall with them.

• The defendant was asked to state whether the work was done under the copartnership agreement, which under objection and exception was excluded. This we think was not error. The question called for a conclusion merely. Besides the witness had before testified as to this in detail. We think the evidence as to breaking open a tool house,' although irrelevant, could not possibly have injured the defendant, as the witness said that no one told him to break the tool house open, but that he did it because he had to go to work, and in order to get his tools, no key being there, he broke the lock.

The judgment should be affirmed, with one bill of costs to the respondents.

Bischoff and Pryor, JJ., concur.  