
    Louis Barth, Appellant, v. Gustave J. Paul and Frank M. Paul, Respondents.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Partnership—What constitutes — Evidence of partnership — Admissibility.
    In an action against a firm to recover for goods sold ancl^delivered, letters from the agent who ordered the goods and from the firm, received by plaintiff in the ordinary course of business, are admissible for the purpose of showing the agent’s authority.
    Appeal by the plaintiff from a judgment in favor of the defendants, rendered in the Municipal Court of the city of New York, fourteenth district, borough of Manhattan.
    Louis Boehm, for appellant.
    Jacob Levy, for respondents.
   Clinch, J.

Plaintiff sued to recover a balance due for goods sold and delivered to defendants, Gustave- J. Paul and Frank M. Paul, doing business as copartners under the name of Paul Bros. The answer admits the copartnership and denies the other allegations of the complaint. Plaintiff proved that two lots of tobacco were ordered by Hathan A. Paul from him on March 19 and June 13, 1900. He testified that the goods were shipped to Paul Bros., and he exhibited a receipt for the shipment of June thirteenth, billed to Paul Bros, at their place of business and signed by H. A. Paul. He was permitted to testify, without exception, that for eight or nine years prior to the transaction in question he had been doing business with Paul Bros., and that during that time Hathan A. Paul had done the buying; also that he received the order of March nineteenth in Paul Bros’, place of business from Hathan A. Paul. On cross-examination he also testified that he had had a conversation with one of the Paul Bros, in presence of both of them in respect to the shipment of June thirteenth, and that he never charged anything except to Paul Bros. He also testified, without objection or exception, that Hathan A. Paul had given him orders for goods in Paul Pros’, place of business, in the presence of Gustave J. and Prank M. Paul, for which Paul Bros, had paid. Plaintiff then attempted to introduce certain letters from Hathan A. Paul and Paul Bros., received in the ordinary course of business, for the purpose of showing that Hathan A. Paul was connected in business with Paul Bros., had charge of their financial transactions, and of proving agency. These letters were excluded by the trial court, and the defendants’ motion to dismiss the complaint, on the ground that the plaintiff had failed to prove agency and had failed to establish allegations of the complaint, was granted. ’

The letters were clearly admissible and should have been received, although it may be doubted whether they were really necessary to prove plaintiff’s case, as it would seem from the evidence admitted that the agency of Hathan A. Paul had been sufficiently established to bind the defendants prima facie.

Gildebsleeve and Davis, Jj., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  