Opinion
January 10, 1919.
Hugart F. Norman of counsel [ Wilber, Norman Kahn, attorneys], for the appellants.
Bernard Breitbart of counsel [ Breitbart Breitbart, attorneys], for the respondents.
Present — CLARKE, P.J., LAUGHLIN, SMITH, PAGE and MERRELL, JJ.
The complaint alleged the partnership of defendants and a breach of the contract by that partnership. The defendant Balsam alone was served and appeared in the action and his answer was a general denial. Proof was offered of the partnership at the time of the transaction in question which was held insufficient by the trial court. Proof was then offered by the plaintiffs that at times prior to this transaction in question the defendants were partners and that the plaintiffs had dealings with them as such partners and had not been notified of any dissolution of that partnership which it was claimed had taken place prior to the transaction in question. This the court refused to allow the plaintiffs to show on the ground that having pleaded a partnership such proof was incompetent under the pleadings. After this ruling the plaintiffs also asked leave to withdraw a juror and apply at Special Term for an amendment of the complaint, which motion was denied. Judgment was then directed for the defendants, dismissing plaintiffs' complaint.
Under the rule laid down in Vellum v. Demerle (65 Hun, 543) we are of opinion that the plaintiff should have been allowed to make the proof offered without amendment of the complaint. The judgment should be reversed and a new trial granted, with costs to appellants to abide the event.
Judgment reversed and new trial ordered, with costs to appellants to abide event.