
    John H. Sheehan, Surviving Partner, Resp’t, v. Daniel W. Fleetham, Impl’d, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Partnership—Evidence.
    In an action against two persons as partners, the declarations of one of the defendants made in the absence of the other to a mercantile agency, and the report of such agency presumably founded on such declarations, to the effect that a copartnership existed between such defendants, are inadmissible to prove that fact as against such other defendant.
    
      Appeal from a judgment entered upon a verdict of a jury at the circuit, and from an order denying a motion for a new trial upon the minutes of the judge.
    
      Sawyer & Sawyer (George C. Sawyer, of counsel), for app’lt; Nelson L. Robinson (William Neman, of counsel), for resp’t.
   Putnam, J.

I concur in the views stated in the opinion of Justice Mayham, that the former decision in this case concludes us as to the greater part of the questions involved, and that the trial judge properly submitted the question of fact as to the partnership to the jury. But I have reached the conclusion that an error was committed in overruling defendant’s objections to the evidence of the witness Hutchins, as to his declarations to the agent of Dun & Co., and also the objection to the report of the latter. The principal question in the case was whether the defendant Fleetham was a partner of Hutchins. Plaintiff was allowed on the trial to prove the declarations of Hutchins, in the absence of Fleetham, that the latter was such partner, and also to put in evidence the report of Dun & Co., presumably founded on such declaration. This evidence was objected to, and proved, or tended to prove, the co-partnership between Fleetham and Hutchins. I think that the objections of defendant Fleetham to these declarations of Hutchins and to the report of Dun & Co. were well taken, and should have been sustained. McPherson v. Rathbone, 7 Wend., 216; Thorn v. Smith, 21 id., 365; Kirby v. Hewitt, 26 Barb., 607 ; Rice on Evidence, 444-445.

For this error the judgment should be reversed, and a new trial granted, costs to abide the -event.

Herrick, J., concurs.

Mayham, P. J.

In Sheehan v. Fleetham, 34 St. Rep., 665, this court held, a majority of the judges concurring, that the evidence in this case on a former trial, which was substantially like the evidence on this trial, was sufficient to authorize the submission of the case to the jury upon the question of the existence of a co-partnership between Hutchins and Fleetham, and that evidence was on this trial so submitted, and the jury found the existence of that relation.

If this evidence was sufficient to authorize the submission of that question to the jury, then their verdict finding the existence of that relation could not be set aside on the ground that it was unsupported by the evidence, and a refusal of the trial judge to set aside the verdict as not supported by the evidence was not error.

As the question whether the evidence in this case was sufficient, as matter of law, to create the relation of copartners was fully discussed on the former appeal in this action, and passed upon and held by a majority of the court to be sufficient to establish that relation, or, at least, sufficient to authorize the jury so to find, it seems unnecessary to discuss that question on this appeal.

In that case Learned, P. J., upon that subject, uses this language : “ But when one carrying on a business of buying and selling assigns half of the property, including the accounts, to another, and goes on with the buying and selling as before, with the knowledge of the assignee, there is quite strong evidence from which the jury may infer that the assignee consents to share in the business as a partner.

“ Still more, if the assignee himself had previously been half owner of the business.” Sheehan v. Fleetham, supra, p. 668.

The appellant insists that errors were committed in the receipt and rejection of evidence on this trial, for which the judgment should be reversed.

We think within the view taken by the prevailing opinion of the general term the evidence offered and received relating to the transactions and litigations between the defendant Hutchins and his wife and the defendant Fleetham was competent as bearing upon the question as to whether or not the defendants Hutchins and Fleetham were partners, and was properly received in this case, and for the purpose of this appeal the decision of the general term must be taken as the law of this case upon that subject The testimony offered and received, under objections, tending to show that the defendant Hutchins transferred his property to defendant Fleetham, and the object of that transfer, and the communication of that fact to the mercantile agency by the defendant Hutchins, and from whom plaintiff derived his information of the existence of the partnership, was also competent, under that decision, as tending to prove the existence of the partnership, and was properly received on the trial.

Also the testimony as to who owned the balance of the drug store. The objection to that evidence was that it was incompetent and immaterial. It was both competent and material evidence in the case, as bearing upon the question of partnership, and no objection was taken that it called for the opinion or conclusion of the witness. Its recejkion was not, therefore, error.

On the whole case we see no error in the receipt or rejection of evidence in this case for which this judgment should be reversed. Hor do we think the court erred in refusing to charge as requested by the defendant. The request was for the court to charge the jury that there was no act established on the part of Fleetham towards the plaintiff during the accruing of the plaintiff’s claim which entitled the plaintiff to believe that Fleetham was a partner of Hutchins. We think the court properly refused so to charge.

That question under the decision of the general term was one of fact for the jury. ' On the whole case I see no ground in the light of the former decision for a reversal of this judgment But my associates think the judgment should be reversed on the ground stated in the opinion of Judge Putnam.

Judgment reversed, new trial ordered, costs to abide event  