114 N.Y.S. 973 | N.Y. App. Div. | 1909
The plaintiffs were copartners, engaged in the sale of dry goods and general merchandise, and occupied the ground floor and part of the basement of No. 583 Tenth avenue in the city of New York for that purpose. The defendants were the lessees of - the rest of the building, including that part of the basement not occupied by the plaintiffs, and the defendant Ryan used the same for the purposes of a hotel, but whether the defendant Sartirana was or was not interested in the hotel business does not appear. The building was heated by steam and the furnace and boiler were in that part of the. basement occupied in connection with the hotel, but the steam pipes extended into and Were designed to heat that part of the building occupied by the plaintiffs. A wooden partition separated that part of the basement occupied by the plaintiffs from the rest.
On the early morning of the 31st of October, 1904, an opening was made in this partition by defendant Ryan or by his direction and from his side of the basement with a’.view to having plumbers employed by him cut off the steam pipes so that the premises occupied by the plaintiffs would not be heated from, the heating plant used in' connection with the hotel. There had been some negotiations between defendant Ryan and plaintiffs concerning the compensation to-be paid by plaintiffs for heating, but they had been unable to agree. The plaintiffs used the basement principally as a storeroom and showroom for millinery goods and toys. Those who brokei through the partition in the basement by the direction of the . defendant Ryan interfered with and damaged to some extent part of the goods of the plaintiffs which were in the basement at the time. The plaintiffs in their complaint alleged that they sustained $3,000 actual damages and demanded judgment for $9,000. They allege that the defendants wrongfully broke into the basement and cut off the. steam pipes, but no damages recoverable by plaintiffs are alleged in that regard. The plaintiffs also allege that the defendants after entering the premises appropriated to their own use and carried away a large quantity of merchandise, and wrongfully,, wantonly and maliciously broke, damaged and destroyed a large quantity of goods, wares and merchandise of the. plaintiffs then in the basement. The plaintiffs gave a bill of particulars of
The ruling of the court upon the trial in granting the motion of the defendant Sartirana for a dismissal of the complaint as to him did not require the entry of a formal order, and was alone sufficient authority for the entry of the judgment. The order, therefore, being entirely unnecessary, was not appealable, and the appeal therefrom should be dismissed.
With respect to the appeal from the judgment dismissing the complaint as to Sartirana, we,are of opinion that the action of the trial court should be sustained. Doubtless, one partner is liable for the torts of another, committed in the course of the copartnership business, and for torts for which authority from him would not be presumed, but which he has ratified. (Fiero Torts, 107-111; Pars. Part. 150; 1 Lindley Part. [Ewell] *299 ; Story Part. [Gray’s ed.] § 166; Chester v. Dickerson, 54 N. Y. 1; Castle v. Bullard, 23 How. [U. S.] 172.) There is, however, in this case no evidence of any ratification by the defendant Sartirana of the wrongful acts of the defendant Eyan, nor is there evidence that the former participated therein. Moreover, it does not appear that they were copartners or that the defendant Sartirana was interested with Eyan in
It follows that the order setting aside the verdict and granting a new trial/as to the defendant Ryan should be affirmed, with costs, and the appeal from the order directing a nonsuit as to the defendant Sartirana should he dismissed and the judgment of nonsuit should • he affirmed, with costs.
, Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.
Order as to defendant Ryan affirmed, with costs, and appeal from order as to defendant Sartirana dismissed and judgment of nonsuit affirmed, with costs. Settle order on notice.