
    Thomas Roberts Stevenson Co., Appellant, v. William L. Tucker et al., Respondents.
    (New York Common Pleas
    General Term,
    November, 1895.)
    An objection that a counterclaim pleaded in favor of a partnership was shown by the proof to be one in favor of only one of the defendants cannot be raised for the first time on appeal.
    Such objection is not raised on the trial by a general motion to dismiss the counterclaim, nor by a motion to strike out the testimony of the other member of the firm on the ground that he had not shown himself entitled to participate in the subject of the counterclaim.
    A motion to strike out all of a witness’ testimony is properly denied where a portion thereof is competent and relevant to the issues.
    Facts sufficient to show authority in an agent to enter into a contract for his principal.
    Appeal from a judgment rendered by the Second Judicial District Court upon a verdict of- a jury in favor of the defendants on a counterclaim.
    
      Phillips & Avery, for appellant.
    
      Lamont McLaughlin, for respondents.
   'Bischoff, J.

Plaintiff brought this action to recover the purchase price of a boiler and range sold to the defendants.

The latter, contesting the value of the chattels as asserted, interposed a counterclaim for commissions alleged to have been earned under a contract between them and the plaintiff, by the terms 'of which they had agreed to sell ranges for the latter, and had sold eighty-five at a commission of one dollar for each range sold.

Abandoning other questions, appellant contends only that no recovery upon the contract -for commissions should have been had.'

It is urged that the defendants’ counterclaim accrued to them as copartners, if at all, and that the proof established the right of Tucker alone under the contract for commissions, as alleged. Upon the trial this objection might have been presented and properly sustained, but' it was not then presented. Had it been, proof of the assignment of the claim from the individual to the partnership might well have been forthcoming. The question is raised too late upon appeal. Haines v. R. R. Co., 145 N. Y. 235. The motion to dismiss: the counterclaim, without more particularity, certainly did not. raise, the, point now presented, nor did the motion to strike out, defendant McNeill’s testimony upon the ground that “he had not shown that he was entitled- to recover or had any participation in this commission.”' This objection merely called attention to the admissibility of the evidence and had no bearing upon the counterclaim itself.

The exception to the denial of this motion presents no error.. That McNeill had not been shown to be a party in interest: constituted no valid objection to him as a witness, and the evidence was competent and relevant upon the issue whether or not the contract for commissions had been made. Further, the motion was to strike out all the testimony, a large part of' which bore directly upon the plaintiff’s cause of action, and it-would have been erroneous to grant it.

A further point is made that authority in the agent or agents with whom this contract for commissions was made: was not proven.

This agreement, according to the defendants’ evidence, was ■ made with plaintiff through one Lovejoy. Defendant Tucker testified that, upon inquiry at -the plaintiff’s place of business for the manager, he was referred by one of the clerks to Love-joy, “ who from all appearances had . charge.” Substantially to this effect was the testimony of the defendant McNeilL Tucker further testified that he had, previous to the transaction in suit, had other dealings with Lovejoy and had been allowed and paid a commission or discount of one 'dollar for each range sold; also, that “ Mr. Smith said lie was willing to stand up to any contract made by Lovejoy with us.”

Since Mr. Smith was conceded by the appellant to have been at that time its manager, the above might be taken either as evidence of a ratification, or as' further proof of Lovejoy’s authority. Other evidence appears, which, though somewhat equivocal, might have been properly understood by the jury as showing a ratification of Lovejoy’s acts. We find no reason for disturbing the. result arrived at by the jury.

Judgment affirmed, with costs.

Bookstaver and Pryor, JJ., concur.

Judgment affirmed, with costs.  