
    Hassett v. McArdle.
    (City Court of New York
    General Term,
    February, 1893.)
    If the record shows any evidence, however slight, tending to prove plaintiff’s case, it is error for the trial court to dismiss the complaint or order a nonsuit.
    In such case, the court should not grant a nonsuit on the assumption that plaintiff’s witnesses are not to he believed, hut is bound to assume the facts which plaintiff’s evidence legitimately conduces to prove, although their correctness may be controverted by the evidence for defendant.'
    Appeal by plaintiff from judgment dismissing the complaint as against defendant McArdle.
    
      Hylcmd <& Zdbrishie, for plaintiff (appellant).
    
      Cardoza Bros., for defendant (respondent).
   Van Wyck, J.

Plaintiff’s action is to recover damages for breach of a contract made as alleged by M. Donnelly & Co., then composed of the two defendants, Michael Donnelly and Peter J. McArdle. The defendant McArdle appeared at trial and defended, but the defendant Donnelly did not.

After the close of plaintiff’s evidence and before defendant rested his case, he moved to dismiss the complaint and the court dismissed as against defendant McArdle, and directed a verdict against defendant Donnelly, who did not defend at trial. The plaintiff duly excepted and took this appeal from the judgment of dismissal against McArdle. This was a non-suit and will be reviewed as such. If the record shows any evidence, however slight, tending to prove the plaintiff’s cause of action against defendant McArdle, it was not within the power of the court below to dismiss the complaint or order a nonsuit; nor could the nonsuit have been granted on the assumption that plaintiff’s witness is not to be believed, but the court was bound to assume the truth of the facts which plaintiff’s evidence legitimately conduces to prove, although their correctness may be controverted by the defendant’s evidence. Plaintiff’s evidence shows that the contract on the breach of which this action is founded, was signed M. Donnelly & Co. on November 27, 1890, by defendant Donnelly, in the presence of and under the direction of Stephen, the son of defendant McArdle, and in the place of business at 134 Leroy street, this city, upon which the sign was “ M. Donnelly & Co., Bails, Scrap Iron and Metals,” and that printed at the top of this contract was the same firm and business description, and that the contract was for the transportation by plaintiff of 200 tons of iron for said firm. It is undisputed that Donnelly and McArdle were copartners on November 7, 1889, and as such were then carrying on the business of buying and selling rails, scrap iron and metals, at this same place, 134 Leroy street. The defendant Donnelly, who was called by plaintiff, testified that he and McArdle continued as such copartners until March 18, 1891, when McArdle caused to be published in the New York Herald a notice of dissolution as by mutual consent and that after November 7, 1889, he, Donnelly, had as much right there as he liad ever had before. This evidence, standing alone, is certainly a aprima facie case for plaintiff as to defendants’ liability as copartners.

However, while Donnelly was under cross-examination by counsel for defendant and at defendant’s request an agreement was marked in evidence as defendant’s exhibit No. 1, and which was signed by Donnelly, dated November 7,1889, consenting to .a dissolution of the firm of M. Donnelly & Co., carrying on the rail and scrap iron and metal business at 134 Leroy street, and assigning all of his title to said firm and its assets to defendant McArdle, and further consenting (why his consent was necessary if the sale was bona fide does not appear) that McArdle’s son Stephen should take charge of the business at 134 Leroy street. The plaintiff duly objected to this agreement being marked in evidence by defendant, and certainly he was not bound by it, but it was a part of defendant’s evidence to- contradict the witness Donnelly, and at best, only impeached his credibility, for Donnelly in explanation, testified that he gave .the bill of sale (this agreement so designated in record) for protection, that lie signed it, hut I still had as much right there as I ever had before. I signed the paper, hut I never sold my rights there ; ” the business continued in the name of M. Donnelly & Co.; that after this hill of sale was made the firm of 11. Donnelly & Co. continued to do business the same as it did before and did over a million dollars afterwards, and that both he and McArdle signed II. Donnelly & Co. to notes in the hank, and then continuing under cross-examination, he testified that as late as “in 1891, I claiming to he a member of tho firm of 1/1. Donnelly & Co., brought an action in the Supreme Court, against Patrick J. McArdle, for an accounting.” It is true, however, that defendant was again allowed to put in a part of his evidence while cross-examining this witness, for ho had marked in evidence as his exhibit Uo. 2, the judgment only, in that Supreme Court action, which was merely a nonsuit, and could not hind this plaintiff, who was not a party to that action, and hence had no legitimate hearing Upon this case.

The nonsuit in this action should not have been granted and the judgment is reversed, with costs to appellant to abide the event.

McGowsr, J., concurs.

Judgment reversed.  