Hotopp v. Huber , 41 N.Y.S. 991 ( 1896 )

McAdam, J.

The action is to charge the defendants, as executors of Otto Huber, with a debt owing to the plaintiff by the firm of P. Lenk & Co., of which said Huber was a member. He did not intend to become a general, but a limited partner in the firm, and papers were executed which are on their face conformable to the statute relating to limited partnerships. It is alleged, however, that the affidavit made by Huber, in which he swore that he had contributed $50,000 in cash to the capital of the firm, was false, and in consequence he became liable as a general partner. Van Ingen v. Whitman, 62 N. Y. 513; Durant v. Abendroth, 69 id. 148; Metropolitan Bk. v. Sirret, 97 id. 320; Van Dolsen v. Abendroth, 1 City Ct. Rep. 469; affirmed, 131 U. S. 66. The onus of establishing the falsity of the affidavit was on the plaintiff (Continental Bank v. Strauss, 60 N. Y. Super. Ct. 151; affirmed, 137 N. Y. 148), who relied upon Charles Weller, the bookkeeper and cashier of the firm, to prove the fact alleged. Weller proved to be a very unwilling witness, and it required the greatest effort to get any information from him. A searching inquiry almost in the nature of a cross-examination was, therefore, allowed to enable counsel to probe for the facts. Bullard v. Pearsall, 53 N. Y. 230; Wright v. Grant, 6 N. Y. St. Repr. 362. The witness finally testified that he had no knowledge of the contribution,, and that it did not in any manner appear on the firm’s books or on those used to make deposits in banks where the firm kept its moneys. The question is whether these proofs make out a prima facie case, sufficient to call upon the defendants to offer something in support of the affidavit attacked, or whether the complaint should be dismissed as unproved. While the evidence" might have been more satisfactory, it cannot be arbitrarily disregarded, particularly in view of the fact that the witness occupied a position with the firm which gave him.ample opportunity to know whether the contribution mentioned in the affidavit had ever entered the firm’s assets. The absence of entries of payment in regular books of account) which in the ordinary course of business would exist if payment had been made, furnishes lawful evidence of nonpayment. Mayor v. Goldman, 125 N. Y. 395; Furness v. Cope, 5 Bing. 114. The entries in a firm’s books of a special partnership are coihpetent evidence against the special partner and in favor of a third person, as being in thé nature of admissions of the facts therein stated. First Nat. Bk. v. Huber, 75 Hun, 80, 82; Kohler v. Lindenmyer, 129 N. Y. 498; The defendants urge that the liability of the partners was originally joint and always remains so, and that the surviving partners should have been joined as defendants. Voorhis v. Childs’ Ex’r, 17 N. Y. 354; Haines v. Hollister, 64 id. 1. The death of Lindenmyer, the other special partner, is admitted by the pleadings, and the plaintiff proved the entry of judgment against the surviving general partners and the return of an execution thereon unsatisfied. This .wás sufficient to warrant suit against the representatives of Huber (Van Riper v. Poppenhausen, 43 N. Y. 68; Pope v. Cole, 55 id. 124; Masten v. Blackwell, 8 Hun, 313; Harbeck v. Pupin, 123 N. Y. 118); for when a special partner becomes liable for the engagements; of the partnership as a general partner, such liability continues against his estate after his death. First Nat. Bk. v. Huber, supra. The plaintiff is entitled.to judgment. .

Judgment for plaintiff.