Tanner v. Di Blasi — 150 N.Y.S. 657

Majority

p. 657

TANNER et al. v. DI BLASI.

(Supreme Court, Appellate Term, First Department.

December 24, 1914.)

Headnote

1. Trial (§ 165^[1] )—Motion for Dismissal—Evidence.

On motion for dismissal at the close of plaintiffs* case, testimony of plaintiffs must be taken as true.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 373, 374; Dec. Dig. § 165.*]

2. Partnership (§ 20*)—Existence of Relation—Rights of Parties.

Where two persons worked under an agreement for an equal division by them of wages to be paid by defendant, they were partners to that extent, and could recover wages earned by them.

[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 6, 7; Dec. Dig. § 20.*]

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Israel Tanner and another against Antonio Di Blasi. Prom a judgment of dismissal of the complaint, and from an order denying new trial, plaintiffs appeal. Reversed, and new trial ordered.

Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ.

Harris Koppelman, of New York City, for appellants.

Hobart S. Bird, of New York City, for respondent.

[1, 2] The complaint in this action was dismissed at the close of the plaintiffs’ case, upon the ground that there was no evidence of partnership or of joint interest in the cause of action shown in the plaintiffs. This was error. The testimony offered by the plaintiffs, tending to show fully the arrangement between them as to the wages earned by them, was repeatedly excluded by the the trial court upon objection by defendant’s counsel; but there was sufficient testimony given, which upon a dismissal must be taken as true, to show that plaintiffs worked under an agreement for an equal division of the wages paid and to be paid by the defendant, and were partners to that extent. Under such circumstances, the complaint should not have been dismissed.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event. All concur.