13 N.Y.S. 170 | N.Y. Sup. Ct. | 1891
A denial in a verified answer made upon information and belief is good. Bennett v. Manufacturing Co., 110 N. Y. 150, 17 N. E. Rep. 669. The plaintiffs insist that the denial went to the allegations contained in the first cause of action, and that the allegation of the partnership of the defendants was not any allegation requisite to the cause of action, and therefore is not covered by the denial. The answer evidently goes to the allegations of the paragraphs of the complaint as numbered, and thus covers the allegation of partnership. Besides, the allegation of each paragraph of the complaint is that the goods were sold to the defendants as partners, and thus a partnership in their purchase, if not general, was an essential part of plaintiffs’ case. The court erred, therefore, in disregarding the answers, and that error requires a reversal, unless the plaintiffs prove their case by evidence admissible, notwithstanding the objections thereto interposed by the defendants.
The main question of fact seems to have been whether the appellant Edward M. Walker was a partner of his co-defendant. Charles G. Eddy testified that he sold the goods to C. F. Walker, and that C. F. Walker, prior to the sale, told him that Edward M. Walker was his partner. This was objected to as inadmissible, and hearsay as against Edward M. Walker. It clearly was so, and it was error to overrule the objection and receive the testimony. There was abundant evidence that C. F. Walker used the name of C. F. Walker & Co., and represented that Edward M. Walker was his partner. This evidence was received, notwithstanding appellant’s objections. It was not admissible. There is slight, if any, evidence competent against Edward M. Walker showing that he was such partner.' The judgment against him should be reversed, with costs. All concur.