
    Charles James and George James, Appellants, v. Abram Sitomer and Another, Respondents.
    Second Department,
    January 10, 1908.
    Partnership — evidence showing partnership relation.
    Action to recover for work, labor and services rendered to defendants, alleged to be copartners.
    The plaintiff testified that although the contract had been made with the defendant B., on his threat to discontinue the work because of B.’s failure to pay, the latter said to him in the presence of a third person, “my partners, will give you a check in a few days,” and that S. then said, “ don’t go away; in a few days I will give you your money.” There was evidence that the plaintiff saw S. around the building several times, and that his employees did work at the private house of S., and that upon going to an office having the name of S. on the window he was paid for such work by B. S. did not appear upon the trial.
    
      Held, that a dismissal of the complaint as to S. on the ground that the plaintiS had failed to give evidence showing his partnership with B. was error.
    Appeal' by the plaintiffs, Charles James and another, from so much of a judgment of the Municipal Court of the city of New York, borough of Brooklyn, as dismisses the complaint against the defendant Abram Sitomer.
    
      Michael J. Grady, for the appellants.
    
      Louis B. Boudin, for the respondents.
   Woodward, J.:

The action was brought by the plaintiffs, copartners' in business as plumbers, against the defendants as copartners, for the sum of $299.10. There was no dispute as to-the performance of the work, the furnishing of the materials or the balance due. therefor, but judgment was rendered in the sum of $296.85 against the defendant Bradkowsky alone, the complaint against Sitomer being dismissed, the court holding that the plaintiffs'failed to prove a partnership between Bradkowsky and Sitomer which would make Sitomer liable for the debts incurred by Bradkowsky..

After considering the evidence, I am of the opinion that the facts are such as to put the defendant Sitomer to his, proof.

The plaintiffs submitted an estimate to Bradkowsky, a contract was thereupon made and the work was done in accordance with that contract. It appears, furthermore, that all of the dealings of the plaintiffs except one were with the defendant. Bradkowsky ; the only time that the plaintiffs dealt with the defendant Sitomer was when, being incensed because of the defendants’ failure to pay, lie threatened to take his tools away. I consider this occasion, however, significant.

I quote from the plaintiff’s testimony as shown by the minutes (p. 8) : “ Q. Give us the conversation between Bradkowsky, yourself and Sitomer ? A. I said, ‘ There is a payment of one hundred and fifty, dollars due here, and I cannot go any further with this work unless I get that payment.’ He said, ‘Mr. James,- my partner, Mr. Sitomer, will give you a-’check in a few days,’ and Mr. Sitomer says, ‘ Yes, leave your tools on the job and don’t go away, in a few_ days I will give you your money.’ ” The plaintiff testified that he subsequently saw Sitomer around the building several times, though lie had no further conversation with him; that his .workmen ' did work at the private house- of the defendant Sitomer; that- he went to the office of said Sitomer and was there paid on account for his work in cheeks aggregating $525.10; that he did not see Sitomer, but that the -checks were given him by Bradkowsky, who went into and then came out of “ a little side office,” and that there was a sign on the window “A. Sitomer.”

While the plaintiff admitted that he could not swear that the man introduced by Bradkowsky as his partner Sitomer was Sitomer, yet: having seen the man purporting to be Sitomer around the work, and having been promised payment by him, and having also on one occasion been paid at an office in which was a sign inscribed witli his name, the plaintiff had good reason to conclude that Sitomer was the partner of Bradkowsky.

The defendant Sitomer, therefore, should be put ,to the proof. If there are two Sitomers, one false and another real, it was significant that, as indicated by the record, neither was in court. Surely, if the. real Sitomer was imposed upon, it can be no hardship for him to establish his identity. If, however, there is but one Sitomer, and he has been doing business with Bradkowsky, and has permitted himself to be introduced as the partner of Bradkowsky, he may be liable.

I am of the opinion, therefore, that that part of the judgment dismissing the complaint against the defendant Sitomer should be reversed and a new trial granted. ■ ■

Jenks, Hooker, Gaynor and Hiller, JJ., concurred.

That part of the judgment of the Hunicipal Court dismissing the complaint against the defendant Sitomer reversed and new trial ordered, costs to abide the event.  