Garbett v. Gedney , 37 N.Y.S. 200 ( 1896 )

Fitzsimons, J.

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 the jury and directed a verdict in favor of the plaintiff for $1,253.46, 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 defendant William H. Gedney and son, with the knowledge of his codefendant herein, and under that name, conducted the business transactions in 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 IT. 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 certainly justified in assuming the existence of such copartnership. Norquist v. Dalton, 32 N. Y. St. Repr. 240; Dreher v. Connolly, 16 Daly, 106.

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 judgmeiit must be sustained, with costs.

Botty and McCarthy, JJ., concur.

Judgment affirmed, with costs.