Fairchild v. Rushmore

8 Bosw. 698

Opinion

By the Court—Robertson, J.

The order appealed from should be affirmed upon two grounds:

Fvrst. The answer admits the partnership of the defendants at the time of making the note alleged in the complaint, by not controverting it.

Second. The defendants’ affidavit impliedly admits dealings between them as a partnership, and the plaintiffs, by sales of merchandise, and does not pretend any notice of dissolution before new dealings.

The allegation of partnership is an allegation of the authority of that defendant who signed and indorsed the note, to bind the others thereby. It is possible, under the answer, they might have been entitled to set up that such authority had ceased, if the allegations had not been express in the complaint that it continued until the making of the note; this reduces the denial of the answer to an allegation of a fact, to wit, that none of the defendants made the note, from an allegation of a conclusion of law, to wit, that they had not done any act by which in law they became makers of the note. The defendants’ affidavit does not deny the making of the note by one of the partners, and therefore the answer was sham.

It is not entirely clear that the answer is not also frivolous, becauses it only takes issue on the making and indorsing of the note by the defendants, personally and jointly, and not by any of them, or the authority of any of them; but the foregoing grounds are sufficient.