p. 250Gaetano Delise et al., Resp’ts, v. Joseph Palladino, App’lt.(Supreme Court, Appellate Term, First Department,Headnote
1. Credibility—Interested party.The brother-in-law of a party, who aided him all he could in the trial, is not a disinterested witness whose testimony, when unoontradicted and unimpeached, must be believed in preference to the testimony of an adverse party.
A person entitled merely to a share in the profits of a firm as compensation for his services is not a partner, so as to render him a necessary party - to an action by the firm.
Appeal from a judgment in favor of plaintiffs.
Louis Hess, for app’It; D. Humphrey, for resp’ts.
The main objection urged against the recovery is that Antonio Oapuano, who the defendant alleged was a partner of the plaintiffs, should have transferred to them his interest in the balance of $75.59, claimed herein, before they could maintain action thereon. But the evidence' shows that Oapuano had no such interest. The firm composed of the plaintiffs 'did business in Brooklyn, and had a branch office in Jersey City. The money in question, though advanced by Oapuano, belonged to the plaintiffs, came from their Jersey Oity office, and was advanced on their account. It was claimed that Oapuano had an interest in the Jersey Oity branch office, and that he was an equal partner in the firm. In fact he so testified at the trial as a witness on the part of the defendant, The plaintiffs testified that he was not a partner in their firm, had no capital invested in the business, and merely received á share of the profits for his services. Though the plaintiffs were interested in the result,'they were not more so than Oapuano f who is a brother-in-law of the defendant, and did all he could to aid him upon the trial • The justice was therefore called upon to determine which of the interested parties was tell
p. 251ing the truth. He found for the plaintiffs, and was justified in so> doing. If, as the justice found, Gapuano was not a member of the firm, he was entitled only to a share of its profits in the Jersey branch for his services. He was not a necessary party to any action brought by the firm, and it needed no assignment from him to maintain the action. This is clear upon principle as well as authority. Beudel v. Hettrick, 35 N. Y. Supr. Ct. 405 ; Adee v. Cornell, 25 Hun, 78 ;
Cassidy v. Hall, 97 N. Y. 159 ;
Richardson v. Hughitt, 76 N. Y. 55 ; First Nat. Bank of Jersey City v. Staples, 34 St. Rep. 503 . The item of $14.50 was clearly established, and the amount of the note practically admitted. The facts as found by the justice entitled the plaintiffs to the judgment rendered. We find no error, and the judgment must be affirmed;, with costs.