Bryant v. Settel

BISCHOFF, J. The controversy between the parties was whether the plaintiff performed his agreement to furnish steam at a pressure of 75 pounds, and whether the defendant Philip Settel was liable as an original debtor upon the claim in suit for water, steam, and gas furnished to the defendant Samuel Settel after the termination of the partnership which had existed between these defendants. From so much of the judgment as directs a dismissal of the action as to the defendant Philip Settel the plaintiff appeals, and the defendant Samuel Settel has taken an appeal from the judgment in favor of the plaintiff as against him. In our opinion the judgment should be affirmed. The evidence before the justice amply supports his determination that steam pressure in excess of 75 pounds was supplied to the defendant appellant with no substantial deviation, and it is not the province of this court to re [948] try questions of fact upon conflicting evidence where the court below was justified in reaching a conclusion according to the apparent credibility of witnesses. The dismissal as to the defendant Philip Settel is supported by the fact, within the authority of the justice to find upon the evidence, that notice of the dissolution of the partnership had been given the plaintiff, who then continued to deal with the defendant Samuel Settel individually and to furnish water, steam, and gas to him upon his personal credit. Actual notice that the partnership was ended and that this one defendant would continue the business for his own account sufficed to put the plaintiff upon his inquiry as to the party’s assumption of the debts without further notice of the exact terms of the dissolution agreement (Filippini v. Stead, 4 Misc. Rep. 405, 23 N. Y. Supp. 1061), and rendered the one time partner liable as surety only, so far as the debt was one connected with the partnership transactions. Reed & Barton v. Ashe, 18 App. Div. 501, 46 N. Y. Supp. 126. We conclude that the judgment should be affirmed, with costs in favor of the plaintiff against the appellant Samuel Settel, and in favor of the respondent Philip Settel against the plaintiff. All concur.