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Harvey v. Walker

13 N.Y.S. 170 Court N.Y. Gen. Term Decision date 1891-02-04 English

Delivered by Landon, J.

Contents

Majority

p. 170
Harvey et al. v. Walker et al.
(Supreme Court, General Term, Third Department.
February 4, 1891.)

Headnote

1. Pleading—Answer—General Denial.
Where the complaint alleges a sale of goods to defendants, as partners, a denial, in the answer, of information sufficient to form a belief as to each and every allegation contained in plaintiff’s alleged cause of action, is a sufficient denial of the alleged copartnership of defendants.
2. Evidence—Declarations.
The testimony of a witness that one of the defendants told him the other defendant was his partner is inadmissible as evidence against the latter.
Appeal from Rensselaer county court.
Action by David H. Harvey and Charles G-. Eddy against Edward M. Walker and Charles F. Walker, on there separate causes of action, for goods sold and delivered to 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 co-partners, 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
p. 171
judgment for the plaintiffs. From the judgment of the county court, affirming the judgment of the justice, defendant Edward M. Walker appeals.
Argued before Learned, P. J„ and Landon and Maxhah, JJ.
H. I). Bailey, for appellant. J, A. Cipperly, for respondents.

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.

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