FOURTH DEPARTMENT, NOVEMBER TERM, 1887. * * * governing his own conduct in accordance with reason.' (RAPALLO, J., in Newton v. Mutual Benefit Life Ins. Co., supra.) It is strenuously insisted that such finding is against the evidence. It was held otherwise at the Special Term, and, we think, correctly. The solution of the question turns largely upon the interpretation of the facts and circumstances attending the conduct of the deceased just before and at the time of committing suicide. We are of the opinion that the letter of August 23, 1884, written by the deceased to his wife, is strong evidence supporting the conclusion reached by the jury. In the letter the deceased says, among other things: 'But this voice says, die now. Darling, don't give this revolver away until Clare is big enough to take care of it; then give it to him and tell him its history. Oh, that voice is calling me. I think it is mother's. Now, darling, I bid you and all my friends and the little darlings an affectionate farewell forever, hoping we shall all meet in a fairer world than this, where everybody is our friends. Now, wishing you all farewell, I am no more your unworthy husband, but almost a corpse. Good bye, darling. Charlie E. Hay.' What mind in a normal condition could suggest that a revolver which was used to take the life of a parent, should be preserved as a keepsake for a child of the party using it? What is there in the letter itself other than a betrayal of an 'insane impulse, caused by disease and derangement of an intellect which deprived him of the capacity of governing his own conduct in accordance with reason.' We think the jury was warranted in coming to the conclusion which it did on this branch of the case. "The learned counsel for the appellant calls our attention to Smith v. The Etna Life Insurance Company (49 N. Y., 211), which declares that it is the duty of the General Term to set aside a verdict which is against the clear weight of evidence. We recognize the force of that authority, but we deem it wholly inapplicable to the case before us, as we are of the opinion that the verdict given is in keeping with the strong features of the evidence on the subject of insanity. The trial judge correctly laid down the law with regard to this branch of the case, and gave the question cautiously and elaborately to the jury for its determination. We think it the duty of this court to accept the verdict. These views lead to the FOURTH DEPARTMENT, NOVEMBER TERM, 1887. conclusion that no error occurred upon the trial, or in denying the motion for a new trial made upon the judge's minutes. Judgment and order affirmed, with costs." Fuller, Fuller & Cook, for the appellant. A. P. & D. C. Smith, for the respondent. Opinion by HARDIN, P. J.; FOLLETT, J., concurred; MARTIN, J., not sitting. Judgment and order affirmed. CONRAD SIPFLE, JR., AND CONRAD BREITSCHWERTH, RESPONDENTS, V. ALFRED H. ISHAM, IMPLEADED, APPELLANT. Action on a note alleged to have been made by a firm the fact that the defendants were in fact partners, or that they had by their acts held themselves out to be partners, so as to bind them as to third persons, must be proved. APPEAL from a judgment entered in Onondaga county upon the report of a referee. The action was brought upon a note alleged to have been made by the firm of Stimson & Isham. The defendant, Isham, alleged in his answer that he was not a partner, and that he never made the note or authorized it to be made by Stimson, and that he was not liable upon it. * * * The plaintiffs alleged in their complaint that the defendants. were copartners doing business in Syracuse and Geddes and elsewhere under the firm name and style of Stimson & Isham. That the defendants as such copartners made their note set out in the complaint and delivered it to plaintiffs. The complaint does not state any other ground of liability of defendants to them, nor does it set out the cause of action for which the note was given, or show any ground upon which Isham would be made liable, otherwise than by reason of a copartnership, and the authority implied therefrom if one existed. The court at General Term said: "The referee does not find that Isham & Stimson were copartners, nor that Stimson, who made and signed and delivered the note to plaintiffs as a copartner or otherwise, was authorized by Isham to make the note in suit. Again, FOURTH DEPARTMENT, NOVEMBER TERM, 1887. when Stimson ordered the patterns and refrigerators of the plaintiffs, it does not appear that he had authority to carry on business in the joint name of Isham & Stimson. It does appear that the order was given by Stimson prior to July 26, 1882. It does appear that Isham had declined to go into business with Stimson. Isham stated in a letter written in San Francisco May 15, 1882, to Stimson, viz. 'I cannot go into any business until January 1, 1883.' The same, in substance, was repeated to Stimson in a letter of May 25, 1882. We think, inter se, there was no partnership shown, nor did the defendant hold himself out by acts as a partner so as to bind him as such copartner to third persons. (Central City Savings Bank v. Walker, 66 N. Y., 424, 428.) "In Haas v. Roat (26 Hun, 632), there was an agreement that the defendant was to advance and furnish money to aid in getting ready for the business, and a joint venture was agreed upon, out of which was to come back to the defendant Roat the money put in by him as part of the capital, and one-half of the net profits as such which, as they accrued, were to be his property, his share in the venture. That was a case where the plaintiffs brought the action upon an account contracted in carrying forward the business which was to yield the contesting party one-half of the profits as his share of the venture. (See report of the case in 16 Hun, 526, for a more full statement of the facts.) "There was no proof given of any authority in Stimson to make a note in the name and behalf of Isham. There being no copartnership found, the implied authority of one member of a firm to do what is necessary to carry on the business of the partnership cannot be used to sustain a recovery upon the note. (Webster v. Rackett, 7 Hun, 229.) In that case the contract was made by a firm, and at their place of business, and the authority of one of the members of the firm was held sufficient to authorize the contraction of a debt in the ordinary business of the firm. The Tradesman's Bank v. Astor (11 Wend., 88), is not in point, as there several were jointly liable, and it was held that an agreement between them that neither shall make a contract to charge the other, does not affect third persons ignorant of such agreement.' In National Union Bank v. Landon (66 Barb., 190), there was a copartnership, and hence the partners had the right to give a note, and it bound the firm. That FOURTH DEPARTMENT, NOVEMBER TERM, 1887. case does not aid the respondents. The plaintiffs planted themselves "Judgment reversed, and a new trial ordered before another referee, with costs to abide the event." E. A. Nash, for the appellant. Homer Weston, for the respondents. Opinion by HARDIN, P. J., FOLLETT and MARTIN, J. J., concurred. Judgment reversed, and new trial ordered before another referee, with costs to abide the event. KITTIE A. FLYNN, RESPONDENT, v. DAVID H. HANCOCK, Oral stipulation extending the time in which a justice of the peace may render and docket his judgment — void for indefiniteness, if no time is fixed — the authority of an attorney to make it must be shown -the practice of so enlarging the time condemned. APPEAL from a judgment of the Onondaga County Court affirming a judgment of a Justice's Court. July 31, 1886, the parties submitted this case to the justice, stipulating in open court that he might have ten days in which to render and docket his judgment. Excluding the first day and including the ast day, the time expired Tuesday, August 10, 1886. The justice's return states: "The said ten days having expired on August 10, 1886, without my rendering a judgment, for the reason that the evidence, which was on the trial taken down by a reporter in short FOURTH DEPARTMENT, NOVEMBER TERM, 1887. hand, had not been written out in full, I, on the 11th day of August, 1886, saw the above named attorneys for the respective parties. These attorneys did not appear before me at the same time, but I saw them at different times on said day, but not in my office, and they and each of them agreed to give me all the time I wished for to render judgment herein; therefore, upon and after due deliberation, and on the 24th day of September, 1886, I rendered judgment in favor of plaintiff against defendant for damages, sixteen dollars, costs, twelve dollars and fifty-two cents; total twenty-eight, dollars and fifty-two cents. In his amended return he states that the counsel for the respective parties separately gave him the stipulation before August 10, 1886, at their respective offices or on the street.' The court at General Term said: "There are several objections to enforcing this particular oral stipulation: (1.) The time given by the stipulation was unlimited, and it should be held void for indefiniteness. (2.) The stipulation was not entered into between the counsel who tried the cause, but each separately stipulated with the justice. (3.) There is no evidence that the counsel were authorized by the parties to enter into such a stipulation; and authority to make it after the cause had been finally submitted cannot be presumed from the mere fact that they tried the cause. "But on broader grounds this practice ought to be condemned. This mode of enlarging the time within which a justice of the peace may decide a cause is not authorized by statute, or sanctioned by a reported case. The inconveniences arising from the oral stipulations of the attorneys of record in courts of record has led to a rule that such stipulations are not binding. The returns in this case show that if a justice may take an oral stipulation from counsel out of court, and when both are not before him, that conflicts as to the terms of the stipulation, and when given will arise. It is stated in the return that the extension was given after, and in the amended return, that it was given before the expiration of the time within which the justice might have rendered his decision. The general inconveniences which will flow from such a practice will outweigh the conveniences to parties in particular cases, and the practice ought not to prevail. "The judgments of the County Court and of the Justice's Court are reversed, with costs." HUN-VOL. XLVI 47 |