Garbett v. Gedney — 72 N.Y. St. Rep. 780

Majority

p. 780

Zachariah Garbett, Resp’t, v. William H. Gedney et al., App’lts.

(New York City Court, General Term,

Filed January 28, 1896.)

Headnote

Partnership—Dissolution—Retiring- partner.

Where a firm is dissolved and some of the partners, with the knowledge of the retiring partner, continue the business under the old firm name, the retiring partner is precluded from denying the existence of the copartnership. _

Appeal from a judgement in favor of plaintiff.

George W. Poucher, for app’lts ; Johnston & Johnson, for resp’t.

—The only question which the defendants’’ attorney asked to have submitted to the jury was, “ Were the defendants copartners at the time of the transactions in question ?” The trial justice declined to submit that question to tiie jury, and directed a verdict in favor of the plaintiff for $1,253.43, and he-was right in so doing. It appears, from the undisputed evidence, that up to about December, 1890, the defendants were copartners, in business, and that subsequently the defendants William H. Gedney and son, with the knowledge of his codefendant herein, and under the firm name, conducted the business transactions ii> question by permitting the old firm name to be so used by William A. Gedney ; and, business' under said firm name being carried on as usual, William H. Gedney, the .retired partner, is estopped from denying such copartnership. It was his duty to see that William A. Gedney ceased using the old firm name, and ceased doing business under that name. His failure to do so precludes him from denying the copartnership, and he must suffer the result of his own negligence or indifference. The plaintiff was cer

p. 781

tainly justified- in assuming that existence of such copartnership. Norquist v. Dalton, 32 St. Rep. 240 ; Dreher v. Connolly, 16 Daly, 106 ; 30 St. Rep. 674 . Besides, the case fails to contain the statement that all the evidence is contained therein. We must, therefore, assume that sufficient evidence of the copartnership in question was submitted, and for that reason the ruling of the trial justice above referred to was proper.

The judgment must be sustained, with costs. ;

All concur.