Hershkopf v. Lintner

120 N.Y.S. 725

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 21, 1910
• Status: Published

Opinions

GIEGERICH, J.

This is an action against two defendants, as co-partners, on an account stated. The statement was signed by the defendant Isaac Lintner only. He made no defense, but testified in the plaintiff’s favor against his brother, the other defendant. Adolph Lintner defended on the ground that the obligation was that of Isaac Lintner only, and that there was never any partnership between them. The court was evidently satisfied that there was no partnership, and the evidence fully justifies that conclusion. There was no other question in the case, and there is no reason for disturbing the result reached by the trial court upon that question.

The appellant claims, however, that the judgment is erroneous because the defendant Isaac Lintner put in no answer and did not dispute the plaintiff’s claim, and that a judgment in plaintiff’s favor at least against him should have been rendered. This may be true, but the record does not show that the plaintiff asked for a judgment against him. The only question litigated, and the only question to which the court’s attention was directed, was the liability of the defendant Adolph Lintner, and consequently the plaintiff’s motion, made in broad terms, that judgment be rendered in favor of the plaintiff, was properly denied.

The judgment should be affirmed, with costs.