21 N.Y.S. 618 | The Superior Court of the City of New York and Buffalo | 1893
The plaintiffs sue upon an express agreement entered into May 22, 1891, wherein and whereby it was agreed that the plaintiffs should do certain theatrical printing, and furnish the material therefor, for a play called “A Wolf’s Wedding,” at the agreed price of $4,200. The complaint does not state that the agreement declared on is in writing, and, as it would be valid without that formality, there is no presumption as to how it is evidenced. The defendant and appellant Hellman annexes to his petition an affidavit made by one of his codefendants, in which he states that the agreement is in writing; that it was signed by the defendants Jurgens and Reynolds, but not by the defendant Heilman. Such being the case, the issue is narrowed down to the performance of the work, and the partnership of the defendants, which Heilman denies. There is little room to doubt that the agreement sustains the allegations of the complaiút in regard to the work, and the price to be paid for it, and that Heilman can in no manner be held upon it except on the theory of partnership in the venture,—a fact provable •only by evidence aliunde. Having proved that the agreement was signed