
    Oliver B. Whitney, Resp’t, v. Lawrence E. Wardell, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 4, 1891.)
    
    Partnership—Evidence.
    Where the question whether defendant was a member of a firm was sharply contested, Skid, that it was error to allow plaintiff’s witness to testify that one of the firm had stated to the witness that defendant was his partner, the defendant not being present at the time of such statement.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion to set aside the verdict, and for a new trial.
    ' John Rush (A. T. Clearwater, of counsel), for app’lt; Fldorus Dayton (A. H. Van Burén, of counsel), for resp’t.
   Learned, P J.

This is an action to recover against defendant, as surviving partner of the firm of W. J. Caywood & Co., on a promissory note of $200 made by said firm. The action was commenced in a justice’s court, and after judgment there an appeal was taken to the county court, where it was re-tried. A judgment was recovered for the plaintiff, and from that judgment, and from an order denying a new trial, the defendant appeals.

The only question was whether the defendant was a member of that firm. There was evidence to go to the jury on that point; and though the evidence was conflicting the court properly refused, so far as we see, a new trial on the ground that the verdict was against the evidence. It was, however, a closely contested question of fact, and the defendant was entitled to have no other evidence admitted than such as legitimately bore on the issue.

The plaintiff asked one of his witnesses, Allerton: Did you ever hear Walter J. Caywood say anything about Wardell’s having an interest in the firm?” The defendant objected, on -the ground that the statement was not binding on him unless made in his presence. The objection was overruled and defendant excepted. The witness answered: “ I had no conversation, except to ask him who was his partner, and he said Lawrence B. Wardell.”

This statement was no evidence against the defendant. There was a sharp conflict between plaintiff’s evidence of defendant’s admission that he was a partner and defendant’s denial of such admission. Hence, it was most important that no hearsay or inadmissible evidence should be received. We do not see how that statement of Cay wood’s out of court and not in Wardell's presence could be evidence against Wardell.

Some other questions are raised on the appeal, which need not be discussed here.

But in a case where this question of fact was so sharply contested this improper evidence may have done harm to the defendant. A jury might very naturally think that Caywood’s statement that Wardell was his partner would bind the firm like the act of a partner, and that hence Wardell was by the weight of evidence shown to have been a partner.

The judgment and order must be reversed and a new trial granted, costs to abide the event.

Landon and Mayham, JJ., concur.  