#### The G. H. Haulenbeck Advertising Agency, Respondent, *v.*Moses November and Samuel November, Impleaded, Etc., Appellants.

Appeal from *a*judgment in favor of plaintiff.'

Goldfogle, Cohn *&*Lind (Alfred D- Lind, of coimsel), for appellants.

Edwards &.Bryan (Duncan'Alwarts, of counsel), for respondent.

McCarthy, J.

The trial was somewhat peculiar and, therefore, it was important to prove the authority of Mr. Berger to bind the other members of his firm in any- matter not directly within the line and scope of the partnership business. It is conceded that the contract which was in writing is made between the plaintiff and The American Cloak *&*Suit Company, .per Emil Bergér, and Was written on the letterffiead of the -firm 'and was signed at i plaintiff’s office. . .

It was attempted to be shown by the appellants that when Emil Berger signed the within contract he acted entirely without the scope of his authority as a partner, and could not and did not' bind the other defendants.

This they clearly had a right to prove, but it was objected to, and sustained, and they were thus prevented from-showing-the same. It was the most essential thing to be- proved at, the trial. Eor if this was done without the consent of the firm, and with notice to the plaintiff that any act done by Berger in this matter was- without the scope of his--authority, he could only bind himself-' and not- the other members of. the firm. See. If antrowitz v. Levin, léMisc. Rep; 5'63. . - . ■

After notice.- of one of- the partners- to' a third person "all con-' tracts, thereafter made, by the. partners must be shown Was within *837the scope of the authority of the partnership or has the consent of all the partners thereto or they shall be repudiated.

It is necessary to prove the scope of the authority or the consent of the other members of the firm, and where the evidence is conflicting and not positive, it must be left to the jury to say from the evidence presented what were the facts in regard thereto. There can be no doubt that this case was decidedly one for the jury, and that a verdict was erroneously directed in plaintiff’s favor. Koehler v. Adler,. 78 N. Y. 287; Kantrowitz v. Levin, 14 Misc. Rep. 563-566.

A case must be clear and certain in order to sustain a direction of a verdict by the court. It is easy to move for such direction, and in the hurry, excitement and mass of evidence at. a trial, the justice must not only rely on his own recollection, but must also depend considerably on the statement of counsel as to the facts presented. It is, therefore, dangerous for counsel to urge a direction of a verdict unless the case is clear and unquestionable. For when the facts are uncertain, or there is a conflict, of evidence, the ques- • tions must be submitted to a jury. Marine v. Peyser, 6 Misc. Rep. 540; 58 N. Y. St. Repr. 13, 14; Potts v. Mayer, 74 N. Y. 595.

Without going any further we think, while there are other errors in this, sufficient has been shown already. The judgment is, therefore, reversed, and a new trial granted herein, with costs to appellants to abide event,

Fitzsimows, Ch. J., and Has call, J., concur.

Judgment reversed and new trial granted, with costs to appellants to abide event.