
    Henry C. Adams, App’lt, v. Richard J. Morrison, Public Administrator, etc., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 26, 1889.)
    
    1. Copartnership—Evidence of—When relation does not exist.
    In an action to establish a copartnership, evidence tending to show that there were no written articles of copartnership, that during the many years through which the alleged copartnership continued, the firm name was never signed to any paper or document, nor that any sign was placed, upon the office containing the firm name, that no suits or legal proceedings were commenced in the firm name, will sustain the finding that no. copartnership existed.
    2. Same—Evidence of general reputation not competent to estab-
    lish.
    Evidence of general reputation is not competent to establish the existence of a copartnership, even in an action against copartners by an outside party.
    3. Same—Effect of general reputation—Estoppel.
    Where there is a general reputation that two or more persons are co-partners and they know it and permit other persons to act upon it and to be induced thereby to give credit to the reputed firm, these facts may be proved and may sometimes be sufficient to estop the reputed members of the firm from denying the copartnership in favor of outside parties.
    4. Same—Evidence of personal transactions—When not admissible
    —Code Orv. Pro., § 829.
    Evidence of the receipt and payment of money between the plaintiff and the deceased, and also of an entry made in one of the office’s books, being a docket or register, of the firm name of “H. & H. 0. Adams,” and which was claimed to be competent upon the question of copartnership, was properly excluded as being in some sense a personal transaction and coming within the prohibition of section 829 of the Code.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment entered at a trial term.
    
      Z. S. Westbrook, for app’lt; Robert F. Little, for resp’t.
    
      
       Affirming 3 N. Y. State Rep., 707.
    
   Earl, J.

—This action was commenced by the plaintiff to establish that a co-partnership existed between him and his-father, Henry Adams .from 1841, to the decease of the latter in 1875, in the practice of the law, in the county of Montgomery, and for an accounting in reference to such co-partnership. The trial judge found that the plaintiff and Henry Adams, never carried on any business as co-partners, and therefore dismissed the complaint. We think there-was ample evidence to sustain the finding. There were no-written articles of copartnership. There was no evidence that during the many years which the co-partnership was alleged by the plaintiff to have continued, the firm name was signed to any paper or document in the extensive law business carried on both by the plaintiff and his father, or that any sign was placed upon the office containing the firm name. All suits and legal proceedings instituted in the office occupied for many years by the two parties were commenced either in the name of Henry Adams, as attorney, or in that of Henry C. Adams, as attorney, but never in the name of both of them as a firm. During a portion of the time there was a firm of Adams & Lobdell, and of Adams & Harrow, and for at least one year of the time, the plaintiff occupied a separate office from his father. It also appears that for nearly twenty years before his death, Henry Adams had substantially ceased to practice law; that in 1866, he moved from this state to New Jersey; that the plaintiff remained on intimate terms with his father until his death in 1875, and that this action was not commenced until 1884, about nine years after the death of Henry Adams and nearly thirty years after he had discontinued the practice of the law. There are other facts and circumstances legitimately tending to show that he and his father were not co-partners. It was, however, possible for the trial judge, to have found upon the evidence, that a co-partnership existed between them, but his finding that it did not exist, is based upon sufficient evidence and concludes us. The judgment must, therefore, be affirmed, unless there was some error committed in the rulings upon the trial.

The plaintiff sought upon the trial, to prove the co-partnership between him and his father by reputation. The evidence was objected to and excluded. We are not aware of any decision, or even any dictum to the effect that in favor of a person claiming to be a member of a co-partner-' ship, general reputation is competent for the purpose of establishing the co-partnership. In Robinson v. Green’s Admr. (5 Harr.,115), it was held that to prove a partnership, as between partners, the evidence must be stronger than in other cases. It was said in some of the earlier cases in this state, that general reputation was competent in favor of an outside party suing persons alleged to be partners, to establish the copartnership. Whitney v. Sterling, 14 John., 215; Gowan v. Jackson, 20 id., 176; McPherson v. Rathbone, 11 Wend., 98; Halliday v. McDougall, 22 id., 264.

But in Smith v. Griffith (3 Hill, 333), the rule was finally settled that even in an action against persons as copartners by an outside party evidence, of general reputation is not competent to establish the existence of the copartnership. The court there said that such evidence was unsupported by any sound of analogous principles, the rule itself of most dangerous tendency in practical opera- ' tian, and one which had been rather acquiesced in, as respected a few cases, than established by any settled adjudication of this court.”

And since that decision, evidence of general reputation has never, so far as we can find, been received in this state to establish a copartnership. As such evidence alone is not sufficient or competent to establish a copartnership so too it is not competent in corroboration of other evidence. If the other evidence be insufficient to establish the copartnership then the party bound to establish it must fail, and he cannot supply the defect in his proof by evidence of general reputation; and such is the general rule in this country and in England. 1 Lindley on Partnership (2d Am. ed.), 84, note: But when there is a general reputation that two or more persons are copartners and they know it and permit other persons to act upon it and to be induced thereby to give credit to the reputed firm, these facts may be proved and may be sufficient sometimes to estop the reputed members of the firm from denying the copartnership, in favor of outside parties.

Upon the trial of the action the plaintiff was a witness in his own behalf, and certain questions put to him were excluded under sec. 829 of the Code. He was permitted to testify to declarations made by his father to other persons in his presence to the effect that he and his father were co-partners. He was asked these questions: “ Who received the receipts of the office?” “ Was money paid into the office ? ” and he offered to testify that he did not receive money paid into the office for business done in the office, and that the charges made in a certain case in which he appeared as attorney were paid to his father.

The evidence was-objected to as irrelevant, immaterial and incompetent under section 829, and the objections were sustained. The evidence was claimed to be competent upon the question of the existence of the copartnership. We think that the bearing of the evidence excluded upon that question was so remote and uncertain that it could all have been excluded as immaterial, and it is impossible to say that its exclusion prejudiced the plaintiff.

The two persons, father and son, occupied the same office, and were to some extent concerned in the same business, and whether the one or the other received the money could have but little bearing upon the question whether they were doing business as copartners. But we think the evidence was also properly excluded under section 829. The issue was whether there was a copartnership, and the evidence was offered to prove the facts stated by the living party for the purpose of establishing the co-partnership. If the evidence could in any way'have been material, it must be because the receipt and payment of the money were transactions in which both parties were concerned. The money was paid to and received by one with the consent and acquiesence of the other, and this in some sense involved a personal transaction.

The plaintiff also offered to prove by his own evidence that about the time when he claims the copartnership was formed, his father made an entry in one of the books of the office, being a docket or register, of the firm name of H. & H. 0. Adams, September, 1841.” This was objected to by defendants as incompetent, under section 829, and excluded, and we think properly. The offer was to show that this entry was made in the presence of the witness by his father, for the purpose of establishing the commencement or existence of the copartnership at that time. The entry must have been made by the father as evidence to his son that he then recognized the copartnership, or by arrangement between them to furnish proof of the existence of the copartnership, or as a declaration that that was a partnership book to be kept and used as such, or for some kindred purpose; and in any event the plaintiff was incompetent to give the evidence. Holcomb v. Holcomb, 95 N. Y., 316; Clift v. Moses (decided in this court March 1, 1889), 112 id., 426; 21 N. Y. State Rep., 777; In the Matter of the Probate of the Will of Eysaman (decided in this court, March 12, 1889), 22 N. Y. State Rep., 135.

We are, therefore, of opinion that the judgment should be affirmed, with costs.

All concur.  