David H. Harvey and Charles G. Eddy, Resp’ts, v. Edward M. Walker, Impl’d, App’lt.
(Supreme Court, General Term, Third Department,
Filed February 4, 1891.)
1. Pdeadino—Answer.
A denial in a verified answer made upon information and belief is good.
35. Same.
The complaint in the first paragraph alleged that defendants were co-partners, and in each alleged that the goods were sold to them as copartners. The answer denied each and every allegation in each paragraph. Held, that a partnership in their purchase, if not general, was an essential part of plaintiffs’ case, and the allegation thereof was covered by the denial.
3. Partnership—Evidence.
Evidence that thé person with whom the negotiations for sale were made represented that another was his partner is inadmissible as against such other person.
Appeal from a judgment of the Rensselaer county court, affirming a judgment of the justice’s court of the city of Troy in favor of the plaintiffs.
The plaintiffs, in a verified complaint, set forth three causes of action against the defendants for goods sold and delivered to the defendants. These causes of action are separately set forth in three separate paragraphs, numbered first, second and third. The first paragraph alleges that the defendants were copartners, etc., and that the plaintiffs sold and delivered goods to the defendants as copartners, etc. The second alleges that Hiram T.Whited sold and delivered to defendants as copartners certain other goods, etc., and assigned the demand to plaintiffs. The third alleges that Truman E. Ingalls sold and delivered other goods to defendants as copartners, etc., and assigned the demand to plaintiffs.
The defendants answered separately, and denied upon information and belief each and every allegation contained in the pretended first cause of action set forth in said complaint, and in like form separately as to the second and third causes of action. Each answer was verified in the usual form.
After the issue was joined, plaintiffs’ counsel asked the court to strike out the answer of both defendants and treat them as nullities, upon the ground that the answers were not in the form permitted by the Code, since the defendants could not deny upon information and belief matters within their personal knowledge, and that the verification of such an answer is contrary to the Code. The justice reserved his decision upon the motion, but afterwards treated the answers as nullities, and upon the evidence taken upon the trial rendered judgment for the plaintiff. Edward M. Walker appeals.
H. D. Bailey, for app’lt; J. A. Cipperly, for resp’ts.
Landon, J.
A denial in a verified answer made upon information and belief is good. Bennett v. Leeds Mfg. Co., 110 N. Y., 150; 16 N. Y. State Rep., 841. The plaintiff insists that the denial went to the allegations contained in the first cause of action, *766and 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 proved 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 codefendant. Charles Gr. Eddy testified that he sold the goods to C. F. Walker, and thatC. 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 0. 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.
Learned, P. J., and Mayham, J., concur.