
    Benjamin Pritz et al., Appellants, v. John M. Smyth, Respondent.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Partnership — What constitutes — Evidence of partnership — Sufficiency of evidence.
    Where plaintiffs, who for some time had been selling and billing goods to two brothers, separately, undertake to hold them jointly for a subsequent shipment made to one of them, relying solely upon a joint order testified to by their salesman, who is contradicted by the brothers, a judgment in favor of the defendant to whom the goods were not sent, upon the determination of the disputed question of fact as to whether he was a partner with Ms brother, wilB not be disturbed.
    Appeal by the plaintiffs from a judgment in favor of th© defendant rendered in the Municipal Court of the city o£ Mew York, sixth district, borough of Manhattan.
    
      Hyman, Campbell & Eaton, for appellants.
    David M. Heuberger, for respondent.
   Per Curiam.

If the sale from which this action arises had been the first transaction between the parties, it might be said that a strong case was made out for holding defendant liable as a partner of his brother by representation. It appears, however, that plaintiffs had been dealing with both brothers for some time, selling and billing goods to them separately, and never, until this one transaction, undertaking to charge or hold them jointly for a shipment made to one. The facts relied on to establish a partnership by estoppel are merely indicative of such a relation, but by no means conclusive. If it appeared that the plaintiffs, relying upon these facts, believed that there was a partnership and relied thereon in making the sale, there would be much that might be said in favor of a reversal of the judgment. It does not appear that they did so rely, however, either in former transactions or in the present one. Their reliance in this case seems to have been upon the joint’order to which their salesman testified. He was contradicted by both brothers, and we see no reason for overruling the finding of ¡the justice upon this disputed question of fact.

Judgment must be affirmed, with costs.

Present, Scott, Gieg-ebich and Gbeehbaum, JJ„

Judgment affirmed, with costs.  