Steinbrenner v. Foster & Walmsley

1 Ant. N.P. Cas. 286

• Court: New York Supreme Court
• Decided: July 15, 1824
• Status: Published

Opinion

Betts, J.

I think the witness admissible. I cannot accede to the authority of the Nisi Prius cases cited by the defendants’ counsel.

(1)

Verdict for plaintiff.

Lord, for plaintiff,

Anthon, for defendants.

This action seems to have been brought with abundant circumspection. The authority of Underhill being dubious, except upon the supposition of his being a partner, and that fact not being easily provable, the plaintiff was compelled to resort to the form he adopted. This gave him the advantage of putting the defendants to their plea of the non-joinder of Underhill, if he was a partner, which, on that point, would have resulted in an estoppel of record as to that fact in any subsequent proceeding, or of submitting to his appearance on the stand as a witness, to establish his own authority as partner or otherwise, or of resorting to general evidence of partnership, which, if satisfactory, would establish his power to bind the defendants within the scope of the partnership. The latter of the alternatives was resorted to at the trial, and the question in the case, as to the admissibility of a witness, similarly circumstanced with the plaintiff, turned on the conclusivnness of the record against the defendants in any action the witness might bring against them for his demand.

A record, when offered in evidence, may be accompanied with oral evidence showing the issue. Gardner v. Buckbee, 3 Cow. 120. In this way it might have been proved that this record embraced the question whether Underhill was a partner with defendants, which fact, found affirmatively, would have made his signature, Walmsley, Foster & Co., obligatory on the defendants in an action against them by the witness. Such record, although between different parties, where the party sought to be affected by the evidence, is a party to it, is admissible to charge him as jointly liable with another, where such liability is contested on the trial. Lawrence v. Hunt, 10 Wend. 80.

This is the position established by lord Kenyon in Wheatley v. Menheim. et al., relied upon in the principal case by the defendants’ counsel. The fact that there were other parties, plaintiffs, on the record, so offered, was deemed of no importance, inasmuch as the defendants, were parties on the record, and one of them, who denied the partnership, having had the opportunity of rebutting it by every evidence he could offer.

The authority of Wheatley v. Menheim, seems to be admitted by Green-leaf. Tide 1 Greenl. on Ev. 569, in note. It is, therefore, questionable how far the learned judge was right in admitting the witness. The verdict was submitted to by the parties, and the case was never moved again.