#### James W. Norment, Appellant, *v.*Eleanor C. Wittmann, as Administratrix, etc., of Henry S. Van Beuren, Deceased, Respondent.

First Department,

July 10, 1913.

Partnership — action against administratrix of partner upon firm notes — evidence — existence of partnership — insolvency of surviving partner — agreement to share profits.

In an action upon promissory notes alleged to have been made in the name of a partnership of which defendant’s intestate was a member, the court dismissed the complaint on the merits, upon the ground that the evidence failed to establish that defendant’s intestate was a partner, and that if it did, the action could not be sustained because it did not appear that the surviving partner was insolvent.

Evidence examined, and held, sufficient to establish *prima fade*the existence of the partnership of which defendant’s intestate was a member, and the insolvency of the surviving partner, and that the judgment dismissing the complaint upon the merits should be reversed and a new trial granted.

An agreement for sharing in the profits of a business is sufficient to constitute a partnership as to third persons.

*709Appeal by the plaintiff, James W. Norment, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9 th day of February, 1912, upon the decision of the court after a trial at the New York Special Term.

*William J. Dawley,*for the appellant.

*William Mitchell,*for the respondent.

McLaughlin, J.:

This action is brought upon two promissory notes aggregating $492.25 which were made in the name of a firm of which defendant’s intestate, Henry S. Van Beuren, is alleged to have been a member. At the close of the trial the court dismissed the complaint, on the merits, upon the ground that the evidence failed to establish that defendant’s intestate was a partner in the alleged firm and, if it did, that the action could not be sustained because it did not appear that the surviving partner was ifisolvent. The appeal, therefore, presents two questions: (1) Whether there is evidence to sustain a finding that Van Beuren was a partner; and (2) whether the surviving partner is solvent.

The notes were signed *“*B. B. & H. T. Groom, Mgrs.,” under which name, according to the testimony, H. T. Groom and Henry S. Van Beuren were engaged in raising cattle in the States of Mississippi and Texas. The notes in suit were made and delivered by H. T. Groom — one to the plaintiff and the other to a third party who has since transferred it to him — in payment for hay and supplies furnished to the business of the alleged firm. Upon the issue of the existence of the partnership between H. T. Groom and defendant’s intestate, the former’s deposition was taken, but such portion of it as related to personal transactions with the decedent, plaintiff’s counsel conceded at the trial, was inadmissible under section 829 of the Code of Civil Procedure.

It is undisputed that B. B. Groom had no connection with the concern and he was not called as a witness, nor his deposition read. There was, however, put in evidence a portion of a *710deposition made by the decedent himself in a previous action, where, in answer to questions as to his connection with H. T. Groom or B. B. & H. T. Groom, Mgrs., he said: “ I have had an agreement with H. T. Groom to buy and breed high-grade cattle. The agreement, which was oral, was that I was to be reimbursed for all disbursements made and both of us were to share any profits that might accrue.”

It is fairly to be inferred from the testimony that the notes were given in payment of feed furnished for cattle thus raised. This statement by the intestate as to his connection with B. B. & H. T. Groom, Mgrs., was in no way contradicted or explained by the defendant. It was, therefore, *prima facie*sufficient to prove the existence of the partnership and that defendant’s intestate was a member of it. An agreement for sharing in the profits of a business is sufficient to constitute a partnership as to third persons *(Hackett*v. *Stanley,*115 H. Y. 625; *Leggett*v. *Hyde,*58 id. 272; *Hull*v. *Barth,*48 App. Div. 590), and it is not necessary that the agreement should be to share in losses also. *(Manhattan Brass & Mfg. Co.*v. *Sears,*45 N. Y. 797.)

As to the insolvency of the surviving partner, at the beginning of the trial plaintiff’s counsel conceded that in order to recover it would be necessary for him to prove not only the existence of the partnership, but that the surviving partner was insolvent. The complaint alleged that both H. T. Groom, individually, and the partnership were insolvent, unless the latter owned certain lands in Texas which were claimed by the defendant as part of the individual estate of Van Beuren. The answer affirmatively alleged that the land referred to was owned by Van Beuren’s estate and denied that it was a partnership asset. The testimony clearly established that H. T. Groom was insolvent unless he had an interest in such land. That he did not have such interest was admitted in the defendant’s answer. Such fact was there affirmatively alleged, and that the same belonged solely to the estate of the intestate. It was, therefore, unnecessary for the plaintiff to . show that Groom had no interest in such lands. Outside of this land, as indicated, the proof was amply sufficient to establish insolvency.

*711The judgment appealed from, therefore, is reversed and a new trial ordered, with costs to appellant to abide event.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.