22 N.Y.S. 929 | City of New York Municipal Court | 1893
These two appeals will he considered and disposed of together. First, as to the appeal from the judgment ; the fourth paragraph of the answer sets up as a separate defense that the cause of action, if any, accrued in favor of the copartnership firm of Garvey & Campbell, composed of the plaintiff and one William F. Campbell.
The plaintiff unreservedly accepted this challenge of the answer and the record shows that the cause was tried almost solely upon this issue as to whether the cause of action could be maintained by the plaintiff alone. The bill against the defendant for the labor performed and the materials furnished, and for the recovery of which this action was brought, was made out, with plaintiff’s consent, in the name of Garvey & Campbell. . The defendant’s check of $1,130 as payment on account of this bill is drawn to the order of Garvey & Campbell and is indorsed, first Garvey & Campbell, and then James Garvey (the plaintiff).
William F. Campbell testifies unqualifiedly that this labor and material was furnished to the defendant by a copartnership firm composed of himself and the plaintiff. It is enough to say that the evidence going to prove that the copartnership existed, and that the labor and materials were furnished to defendant by such copartnership, was overwhelming, and hence the verdict for the defendant was eminently proper.
Row as to the appeal from the order denying-a motion for new trial on the ground of newly-discovered evidence. The plaintiff’s affidavit upon this motion states, “ Since the former trial of this action I have discovered that Lawrence Garvey, Thomas A. Garvey, James Flanagan and William Turner can give evidence upon the trial of this cause that will establish that there was no partnership between said Campbell and myself in doing said work. I have been informed by said persons, which information I believe to be true, that said Campbell admitted to them that there was no such copartner
The judgment is affirmed, with costs, and order is affirmed, with costs.
' MoGowrr, J., concurs.
Judgment and order affirmed.