
    Ellen Paul, Individually and as Ex’rx, App’lt, v. Julia Van Da Linda, Impl’d, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Bills and notes— Pleading-.
    The complaint in an action upon a promissory note alleged that defendant and one 8. were partners, and that the firm, for value received, made and delivered to plaintiff the note in suit. The answer did not deny these allegations, but denied knowledge as to the division to be made of the amount of "the note between plaintiff individually and as executrix, and alleged that the note w..s made by S. without defendant’s consent, and was not given in the course of the firm business nor for a firm debt. Held, that by not denying the allegations of the complaint the partnership and the malting of the note were admitted, and that a prima facie case was made out by the pleadings and production of the note.
    2. Same.
    To prove the defeme set up, defendant’s partner, S., was sworn and testified that the note was given for a debt owing by defendant’s husband for money borrowed by him to put in the firm as capital, and that defendant was not present and did not authorize or sanction the giving of the note in t le firm name; but upon cross-examination it appeared that he had testified differently on a previous examination in relation to the transaction. Held, that his testimony was thereby impaired so as to require its submission to the jury, and that a direction of a verdict for defendant was error.
    Appeal from a judgment recovered on the direction of a verdict at the circuit and from an order denying motion for a new trial.
    
      Coleridge & Hart, for applt; A. Simis, Jr., for resp’t.
   Daniels, J.

The action was brought to recover, by the plaintiff in her own behalf and as executrix of the estate of her deceased husband, the amount of a promissory note given to her on the 18th of October, 1885, for the sum of $2,500. This note was subscribed with the name of A. P. Stevens & Co., and it was alleged in the complaint that the firm of A. P. Stevens & Co. consisted of Augustus P. Stevens and Julia Van Da Linda, the respondent. The complaint alleged that they were associated in business as copartners under that name at the city of Brooklyn on the 12th of October, 1885, and made the note in suit, whereby they promised to pay at 74 Court street on demand after the date thereof, to the plaintiff or order, $2,500 for value received, and delivered the note to the plaintiff.

The answer of the defendant Van Da Linda did not deny these allegations contained in the complaint. The only denial contained in the answer was the want of knowledge as to the division which was alleged should be made of the amount of the note between the plaintiff individually and as executrix. A further defense was interposed by the answer that the note had been made by Stevens and delivered to the plaintiff without the consent of this defendant Van Da Dinda, and that it was not given by him in the course of the business in which they were engaged, nor for any debt owing by the firm of Stevens & Co., and that she was not indebted to the plaintiff, either individually or as executrix.

The failure to deny the making and delivery of the note by the firm to the plaintiff, together with its production by her upon the trial, was presumptive evidence in her favor, entitling her in the first instance to maintain the action for the recovery of the amount unpaid upon the note. For by not denying these allegations of the complaint the partnership was, in fact, admitted, and so was the making and delivery of the note, and the legal presumption upon its production, although it was not stated in the note to have been given for value received, was that it was founded upon a good consideration. 1 Parsons on Bills and Notes, 2d Ed., 175. Anthony v. Harrison, 14 Hun, 198, 217; Bottum v. Scott, 11 N. Y. State Rep., 514.

It was not necessary to proceed further to make out the plaintiff’s case by actual proof of the fact that the note had been made in the business of the company. For prior to the time when it was made, chap. 381, of the Laws of 1884, had gone into effect, providing that a married woman, as this defendant was at the time the note was given, may contract to the same extent and with like effect and in the same form as if unmarried, and that she and her estate shall be liable thereon, whether the contract relates to her separate business or estate, or otherwise, and that a charge upon her separate estate shall not be necessary to create that liability. The case accordingly was prima facie made out by the pleadings and the production of the note in evidence.

The burden was then upon the defendant Van Da Linda under her answer to prove that this note was not given in the course of the business of the partnership or for any liability existing against the firm. And to sustain that defense,' the other member of the firm was produced and examined as a witness in her behalf, and his testimony was to the effect that this note was given to the plaintiff on account of a debt owing from the husband of the defendant Van Da Linda to her for money which had been loaned and advanced by her and put into this business when he himself was a partner with the other defendant Augustus P. Stevens, that she was not present at the time when the note in suit was given, did not authorize it, and in no manner had sanctioned the use of the firm name for this object, and it was upon the testimony given by this witness that the verdict was directed at the trial. But in the course of the cross-examination of this witness it was shown that he had been previously sworn and examined concerning these transactions, and that the evidence given by him was at variance with that which was obtained from him on this trial. These contradictions of his testimony given upon the trial were material, and tended to reduce his credit as a witness in the statements which he made, and that so far impaired the strength of his evidence as to require it to be submitted to the jury. If he was right in what he testified to, that the note was not given for the firm indebtedness, or for any liability of the defendant Van Da Linda, and without her assent or authority, then it was not binding upon her. But whether this was the fact or not was for the jury to decide. The defense was not so fully made out as justified the withdrawal of the case from the jury, and the plaintiff’s counsel requested the court to submit it to the jury. That request was denied and an exception taken to the denial. The exception appears to have been well taken under this state of the evidence, and the judgment and order should be reversed and a new trial directed, with costs to the appellant to abide the event.

Brady, J., concurs.  