111 N.Y.S. 300 | N.Y. App. Div. | 1908
Lead Opinion
On a former appeal herein the majority of this court, in reversing a judgment against these same appellants, held, among other things, that where the existence of a copartnership is in issue, one partner may testify concerning the formation of the partnership, but that neither the admissions nor declarations of an alleged partner are competent evidence on the question- of the existence of the copartnership, but that after prima facie evidence of the existence of the copartnership has first been adduced such admissions and declarations in the course of the copartnership business
The action is brought upon the theory that these appellants and the other defendant Judson entered into a copartnership for the purpose of forming a pool for the purchase and sale of International Power Company stock. The existence of the copartnership was denied and that became the principal issue on the last as well as on the former trial. Upon the last trial, evidence of declarations made by the defendant Judson which, if true, tended to show the existence of the copartnership was received. Similar evidence given on the former trial gave rise to the discussion of this question in the opinion delivered on the former appeal. Under the decision of this court on the former appeal this evidence was properly received after the existence of the copartnership was shown by other competent evidence. The court, however, in the main charge failed to instruct the jury as suggested in our opinion with respect to the materiality and bearing of this testimony. At the close of the charge counsel for the appellant Leiter requested the court to instruct the jury as follows: “ The jury cannot consider the declarations of Judson to plaintiffs or either of them, as binding upon the defendant Leiter, until the jury finds from other evidence than those declarations that a partnership existed between the three defendants on the 29th day of April, 1902.” Also, that “ Judson’s declarations to the plaintiffs or either of them, cannot establish the existence of the partnership. The jury must first find from other evidence that a partnership existed on April 29th, 1902, between the three defendants. If you do not so find, your verdict must be in favor of defendant Leiter.”
These requests were refused without any qualification and counsel for appellant Hoadley dulv excepted. The decision of this court on the former appeal entitled the appellants to have the jury instructed as requested by these requests, and the failure so to do clearly constituted prejudicial error.
It follows that the judgment and orders should be reversed and a new trial granted, with separate bills of costs and disbursements to the appellants to abide the event.
Houghton, J., concurred.
Concurrence Opinion
Where the existence of a partnership is in issue, the declaration of one party that another is his partner is not competent to establish the partnership. ¡Nor do such declarations for that purpose become admissible after jprima facie evidence of the existence of the partnership has been given. The existence of the partnership cannot be strengthened, fortified or bolstered up in this way. All that is meant by the authorities and text books in saying that such declarations become admissible whenprima facie evidence has been given of the partnership is that they may be received for the purpose of binding the partnership, assuming, of course, its existence can be found solely from the other evidence. And whenever such issue is presented at a trial before a jury, tlien specific instructions should be given to this effect.
For these reasons, as well as those assigned in my opinion on the former appeal, and upon the authorities there cited (Franklin v. Hoadley, 115 App. Div. 538, 546), I vote that the judgment be reversed and a new trial ordered.
Ingraham and Clarke, JJ., concurred.
Judgment and orders reversed and new trial ordered, with separate bills of costs and disbursements to the appellants to abide the event. Settle order on notice.