41 N.Y.S. 991 | N.Y. Sup. Ct. | 1896
The action is to charge the defendants, as executors of Otto Huber, with a debt owing to the plaintiff by the firm of P. Lenk & Co., of which said Huber was a member. He did not intend to become a general, but a limited partner in the firm, and papers were executed which are on their face conformable to the statute relating to limited partnerships. It is alleged, however, that the affidavit made by Huber, in which he swore that he had contributed $50,000 in cash to the capital of the firm, was false, and in consequence he became liable as a general partner. Van Ingen v. Whitman, 62 N. Y. 513; Durant v. Abendroth, 69 id. 148; Metropolitan Bk. v. Sirret, 97 id. 320; Van Dolsen v. Abendroth, 1 City Ct. Rep. 469; affirmed, 131 U. S. 66. The onus of establishing the falsity of the affidavit was on the plaintiff (Continental Bank v. Strauss, 60 N. Y. Super. Ct. 151; affirmed, 137 N. Y. 148), who relied upon Charles Weller, the bookkeeper and cashier of the firm, to prove the fact alleged. Weller proved to be a very unwilling witness, and it required the greatest effort to get any information from him. A searching inquiry almost in the nature of a cross-examination was, therefore, allowed to enable counsel to probe for the facts. Bullard v. Pearsall, 53 N. Y. 230; Wright v. Grant, 6 N. Y. St. Repr. 362. The witness finally testified that he had no knowledge of the contribution,, and that it did not in any manner appear on the firm’s books or on those used to make deposits in banks where the firm kept its moneys. The question is whether these proofs make out a prima facie case, sufficient to call upon the defendants to offer something in support of the affidavit attacked, or whether the complaint should be dismissed as unproved. While the evidence" might have been more satisfactory, it cannot be arbitrarily disregarded, particularly
Judgment for plaintiff.
