Swift v. McNamara — 54 N.Y.S. 569

Majority

p. 569

SWIFT et al. v. McNAMARA et al.

(City Court of New York, General Term.

November 19, 1898.)

Headnote

■Partnership—Evidence.

A verdict on conflicting evidence, finding defendants, two brothers named M., liable as partners, will not be disturbed, there being evidence that plaintiffs charged and billed goods to them in the name of M. Bros., and gave receipts in the same style, whenever either made payments, without objection or remonstrance, and that the sign “M. Bros,” was on the window of one of their stores, and on a wagon which called for goods for said store.

Appeal from trial term.

Action by Gustavus F. Swift and another against Matthew McNamara and another. From a judgment for plaintiffs, and an order denying a new trial, defendant Michael McNamara appeals.

Affirmed.

Argued before CONLAN and O’DWYER, JJ.

Henry M. Heyman, for appellant.

Edward Swann, foil respondents.

This is an appeal frorh a judgment entered upon a verdict, and from an order denying a motion for a new trial. The single question submitted to the jury in this case was as to whether or not there was a co-partnership between the defendants, and the jury determined that affirmatively on all the evidence. The defendant Michael McNamara alone appeals. The evidence taken upon the

p. 570

trial was conflicting, the plaintiffs saying that they charged the firm of McNamara Bros., billed their goods to that firm, and receipted bills in the same way, without objection or remonstrance. It is in evidence that a wagon which called for goods for the Third avenue store bore the sign “McNamara Bros.,” and that there was a sign upon the glass window in the store front. There was another store at 741 Second avenue, and both of the defendants had had dealings with the plaintiffs, and all receipts for payments made by both of the defendants were given in the name of McNamara Bros. The defendants testified that there was no co-partnership between them. The charge of the trial judge was as follows: “Were the defendants co-partners? If they were, that settles it. If they were not co-partners, yet if the defendant Matthew McNamara held himself out or permitted himself to be held out as a partner of Patrick McNamara, and plaintiff relied upon such holding out, in that event he would be liable for the debt.” This-was eminently fair to both parties and both defendants. The question was a disputed question of fact, and it was clearly one for the jury to determine, and a court on appeal will not disturb such a finding unless when passion, prejudice, or other improper motive is apparent. The jury may judge of the amount of credibility to be given to a witness from his appearance upon the stand and his manner of testifying, as well as from any other circumstance, and we may not look into the motives which, in the minds of the jury, were sufficient to establish the fact that there was enough to warrant them in reaching a conclusion upon the disputed questions which were their right to determine. The court before whom the case was tried had also the better opportunity of the weight to be given to the evidence adduced, and refused to dismiss the complaint or set aside the verdict.

The determination in the plaintiffs’ favor we are not disposed to disturb, and the judgment and order appealed from must be affirmed, with costs.

O’DWYER, J., concurs.