Sheehan v. Fleetham

PUTNAM, J. I concur in the views stated in the opinion of Justice MAYHAM, that the former decision in this case concludes us as to the •greater part of the questions involved, and that the trial judge properly •submitted the question of fact as to the partnership to the jury. But I ■have reached the conclusion that an error was committed in overruling defendant’s objections to the evidence of the witness Hutchins, as to his ■declarations to the agent of Dun & Co., and also the objection to the report of the latter. The principal question in the case was whether the ■defendant Fleetham was a partner of Hutchins. Plaintiff was allowed on the trial to prove the declarations of Hutchins, in the absence of Fleetham, that the latter was such partner, and also to put in evidence the report of Dun & Co., presumably founded on such declaration. This evidence was objected to, and proved or tended to prove the copartnership between Fleetham and Hutchins. I think that the objections of defendant Fleetham to these declarations of Hutchins and to the report of Dun & Co. were well taken, and should have been sustained. McPherson v. Rathbone, 7 Wend. 216; Thorn v. Smith, 21 Wend. 365; Kirby v. Hewitt, 26 Barb. 607; Rice, Ev. 444, 445. For this error the judgment should be reversed and a new trial granted, costs to abide •the event. HERRICK, J., concurs.