
    Jacob Bernstein, Respondent, v. Moses Cahen and Samuel Cahen, Doing Business under the Name of L. Cahen & Sons, Appellant.
    Appeal by defendant, Moses Cahen, from a judgment in favor of the plaintiff, entered in the City Court of the city of New York.
    Wales E. Severance & Mark Goldberg, for appellant.
    Nathan Tolk (Jacob Stone Freedman, of counsel), for respondent.
   Scott, J.

The plaintiff sues upon three promissory notes, all dated February 20, 1904, and bearing the indorsement of L. Cahen & Sons. The defendant Moses Cahen alone defends. He is sought to be held on the ground that he was, when the notes were made, a member of the firm of L. Cahen & Sons, indorsers on the notes. He defends, denying the partnership, and denying that he ever signed the notes or authorized them to be signed. It is not contended that Moses Cahen indorsed the notes, himself; and, indeed, there is no evidence who signed the firm name of L. Cahen & Sons on the back of the notes. No point was made of this omission upon the trial, and the principal issue tried was whether or not Moses Cahen was a member of the firm when the notes were made. Upon this issue, the evidence was, as the trial justice remarked to the jury, “ very unsatisfactory.” The only evidence given by the plaintiff as to the fact of partnership was that of plaintiff’s attorney in which he testified to a convex sation with Moses Cahen respecting the indebtedness on these notes. That testimony was to the effect that Hoses Cahen, when told that plaintiff held a firm note, said: “ If you have a firm note I guess you will have to wait for it for the reason that we are tied up now; we will have to make an arrangement about paying it la.ter. I don’t intend to pay it, and if you don’t want to wait you will have to sue us to get that money.” It does not appear that defendant at that time denied that he was a member of the firm, and his silence on that point, coupled with the use of the plural pronoun, constituted some evidence, by way of admission, that he was a member of the firm. It was, however, by no means conclusive and was open to explanation and denial. The defendant testified that, up to April, 1903, he had been engaged in business with his mother and brother under the firm name of L. Cahen & Sons; that, in April, 1903, a conversation was had between the mother and the two brothers in which the mother said that, if they wanted to continue the business, it would have to-be in her employ and that she, thereupon, took out a license in her own name. At this point the court intervened and declared the testimony to be incompetent, and suggested to plaintiff’s counsel that he should object to it, whereupon the court declared that plaintiff could not be bound by any conversation between the sons and their mother with reference to the dissolution of the firm. In this the learned justice fell into undoubted error. The question was whether or not the firm had been dissolved in 1903, long before the notes in suit were made. Such a dissolution might either be oral or in writing. Since there was no element of estoppel in the case, it was open to defendant to prove, by any competent testimony, the fact of dissolution. The reference by the court to section 829 of the Code does not appear to be apposite, for, although the mother was dead, there was nothing in the relation of the parties to bring Hoses Oahen’s testimony within the prohibition of that section. It is true that the defendant did not properly except to the ruling of the court; but, in a case like the present, where the evidence to sustain the verdict is so unsatisfactory, we do not consider that we should allow the verdict to stand and a possible injustice be done for want of a timely exception. Moore v. Batten, 5 Misc. 20-25. The reiteration by the learned justice that the evidence was incompetent could hardly fail to have greatly influenced the finding of the jury. We are, therefore, of the opinion that the judgment and order appealed from must be reversed.

Gildebsleeve and MacLean, JJ., concur.

Judgment and order reversed and new trial granted, witK costs to appellant to abide event.  