83 N.Y.S. 66 | N.Y. App. Div. | 1903
The plaintiff and one W. E. Seaver were the owners as tenants in common of certain property upon which was a butter-tub factory. Prior to 1900 the defendant and one Mrs. Bliss were co-partners in the manufacture and sale of butter tubs, doing business under the name of Bliss & Parks. At that time J. E. Bliss, representing Mrs. Bliss, of said firm, rented from W. E. Seaver his undivided half interest in said factory, and the defendant, Parks, rented from the plaintiff his undivided half interest for the year 1900. Thereupon the firm of Bliss & Parks proceeded during the year 1900 to manu
In this ruling, we think, the learned county judge was in error. Certain evidence tending to show the occupancy in 1901 by J. E. Bliss in behalf of the partnership was rejected by the county court as not pleaded. Enough appears in the case, however, to show that J. E. Bliss occupied the premises in 1901, representing his wife’s interest in the partnership. His acts, therefore, in the partnership business, were, as matter of law, acts done in behalf of both partners, and his occupancy in the conduct of the partnership business was the occupancy both of his wife, whom he represented, and of his wife’s partner, this defendant. It was apparently the same occupancy as that which existed in 1900, which was not surrendered in any way by this defendant at the expiration of the lease for the year 1900. I am unable to see how there could be a surrender of the premises at the expiration of the year 1900 without an abandonment by the partnership. In any event, one of the partners could not thereafter hold the occupancy for the same purpose for which it was held in igoo, and claim therefrom an abandonment of the occupancy of the other partner under a lease of an undivided interest. The judgment of the county court must, therefore, be reversed, and a new trial granted.
Judgment reversed, and new trial granted, with costs to appellant to abide event. All concur.