#### Paul v. Stevens *et al.*

*(Supreme Court, General Term, First Department.*

June 6, 1890.)

Partnership—Firm Liabilities—Evidence.

Plaintiff loaned money to one who put it into a partnership business with defendant. Afterwards the borrower retired from the firm, and assigned his interest to his wife. Defendant, upon inquiry, assured plaintiff that the interest on the borrower’s note to her would be paid the same as before, and subsequently, but before the note was due, executed a new note in exchange therefor, payable on demand, and signed in the firm name. It was understood that the money should remain in the business, and thereafter the interest was paid by checks in the firm name. *Held*sufficient evidence that defendant considered it a firm liability, and a verdict against him was properly directed.

Appeal from circuit court, New York county.

Suit by Ellen Paul, individually and as executrix of Theodore R. Paul, deceased, against Augustus P. Stevens and Julia A. "Van Da Linda. Verdict and judgment against defendant Stevens, from which he appeals.

Argued before Brady, P. J., and Daniels, J.

*A. Simis, Jr.,*for appellant. *Coleridge A. Hart,*for respondent.

Daniels, J.

The verdict was directed for the amount unpaid upon a promissory note made on the 12th of October, 1885, payable to the plaintiff or order, in the sum of $2,500. It was subscribed by the firm name of “A. P. Stevens & Co.,” and it was alleged in the complaint that these defendants were associated together as partners in business underthat firm name, and madeand delivered the note in question to the plaintiff. These allegations were not denied by the defendant’s answer, but he set up an affirmative defense to exonerate himself from liability upon the note; and he was received as the witness upon the trial by whose evidence alone these defenses were endeavored to be maintained-. It appeared by his evidence that he, together with James A. *443Yan Da Linda, were previously in partnership under the firm name of A. P. Stevens & Co., and that the plaintiff loaned to Yan Da Linda the sum of $2,000, which he put into this firm as his capital, and gave the plaintiff his individual note for the payment of the indebtedness. Before the note in suit was given, James A. Yan Da Linda retired from the firm, and resigned his interest in it to the defendant Julia Yan Da Linda, his wife; and under this assignment, with the assent of the witness, she became associated with him in the business, and had so continued since the year 1884. After the retirement of James A. Yan Da Linda, who had given the preceding note to the plaintiff, she had an interview with the defendant Augustus P. Stevens concerning the interest payable to her upon the indebtedness, in which he stated that the interest would be paid the same as it previously had been. Then she inquired what would happen to her if he should die, and he testified there was something in that; and he sat down, and drew the note in controversy for this of $2,500, which included $500 of interest then unpaid on the note held by her, and delivered the note to the plaintiff, and that she then destroyed the other note. After that, interest was paid upon this note by checks drawn by this defendant from time to time, and the principal remained in the business.

It was substantially on this state of the proof that the verdict was directed in favor of the plaintiff against the defendant Augustus P. Stevens; and it disclosed sufficient to indicate the truth to be that he regarded the preceding loan as a debt of the firm, and had paid interest upon it according to that understanding, and that the note in suit had been given in place of the preceding note for the reason that James Yan Da Linda had withdrawn from the firm, and that this defendant intended to carry the indebtedness along as that of this firm. The note was payable on demand after date; but, from the interview which this defendant states took place between himself and the plaintiff, it was clearly the understanding that the money should be permitted to remain in the business of the firm, and that no immediate measures should be taken to enforce its collection. That is evident from the fact of the assurance given that the interest should be paid upon the debt the same as it had been while Mr. Yan Da Linda was a member of the firm, and the inference was plainly supported that an extention of time was given for the payment of this money, and that formed a consideration between this defendant and the plaintiff, under the circumstances which appeared to have taken place, supporting the making and delivery of this note; for' it has been repeatedly held that forbearance or an extension of the time for the payment of a debt is a good consideration for the making and delivery of an obligation of this description. *Insurance Co.*v. *Smith,*23 Hun, 535; *Bank*v. *Penfield,*7 Hun, 279; affirmed 69 N. Y. 502. A point similar upon its facts to that controlling the disposition of this ease, arose in *Spalding*v. *Cargill,*53 N. Y. Super. Ct. 453, where it was held that a substitution of a note for a'previous obligation was sufficient to maintain it as a legal obligation. The benefit to the firm by leaving the money in its business for an indefinite period of forbearance created such a consideration. From the evidence which was given, it was also to be inferred, although the money had been loaned to Yan Da Linda himself, that it had been considered by this defendant as a firm indebtedness, and the interest had been paid upon it by him with that understanding; and the change in the form of the obligation from the preceding note in this manner given, was no more than continuing the same liability, and imposing the observance of the same obligations, which had been previously accepted and fulfilled by this defendant. There was sufficient, therefore, in the case, as against this defendant, *to*maintain his liability for the indebtedness. Ho question of fact was presented by the evidence, and a verdict for the plaintiff was legally directed. In these essential respects the case differs from that of the other defendant, Mrs. Yan Da Linda, and the judgment and order should be affirmed.