#### Samuel Abrashkov and David Abrashkov, Appellants, *v.*William J. Ryan and Angelino Sartirana, Respondents.

First Department,

February 5, 1909.

Tort — conversion—injury to personal property —failure to prove damage— new trial — practice — when formal order of dismissal unnecessary — appeal — partnership — liability for tort.

Action to recover for the conversion of merchandise and for wrongful injury thereto. Evidence examined, and *held,*to be toó indefinite to justify the amount of the recovery, or to make it possible to reduce the verdict as a condition for denying a motion for a new trial which, therefore, was properly granted.

As a ruling at trial dismissing the complaint as to one of two defendants is . sufficient authority for the entry of a judgment to that effect, no formal order being necessary, an appeal from a formal order will be dismissed.

While one partner is liable for the torts of another committed in the course of the partnership business or for unauthorized torts subsequently ratified, there can be no judgment against a party not participating in the wrongful act in the absence of proof that a partnership existed or that there was a subsequent ratification of the act.

Appeal by the plaintiffs, Samuel Abrashkov and another, from a judgment of the Supreme Court in favor of the defendant Angelino Sartirana, entered in the office of the clerk of the county of New York on the 20th day of February, 1908, upon the dismissal of the complaint as to said defendant by direction of the court at the close of the plaintiffs’ case upon a trial at the New York Trial Term ; also from an order entered in said clerk’s office on the 16th day of March, 1908, *nunc pro t uno*as of the 10th day of February, 1908, directing the dismissal of the complaint as aforesaid, and also from an order entered on the 12th day of "March, 1908, setting aside a verdict in favor of the plaintiffs against the defendant William J. Ryan and granting a new trial.

*Herbert H*Maass, for the appellants.

*Samuel H. Wandell,*for the respondent Ryan.

*Nelson*Zabriskie, for the respondent Sartirana.

*430Laughlin, J.:

The plaintiffs were copartners, engaged in the sale of dry goods and general merchandise, and occupied the ground floor and part of the basement of No. 583 Tenth avenue in the city of New York for that purpose. The defendants were the lessees of - the rest of the building, including that part of the basement not occupied by the plaintiffs, and the defendant Ryan used the same for the purposes of a hotel, but whether the defendant Sartirana was or was not interested in the hotel business does not appear. The building was heated by steam and the furnace and boiler were in that part of the. basement occupied in connection with the hotel, but the steam pipes extended into and Were designed to heat that part of the building occupied by the plaintiffs. A wooden partition separated that part of the basement occupied by the plaintiffs from the rest.

On the early morning of the 31st of October, 1904, an opening was made in this partition by defendant Ryan or by his direction and from his side of the basement with a’.view to having plumbers employed by him cut off the steam pipes so that the premises occupied by the plaintiffs would not be heated from, the heating plant used in' connection with the hotel. There had been some negotiations between defendant Ryan and plaintiffs concerning the compensation to-be paid by plaintiffs for heating, but they had been unable to agree. The plaintiffs used the basement principally as a storeroom and showroom for millinery goods and toys. Those who brokei through the partition in the basement by the direction of the . defendant Ryan interfered with and damaged to some extent part of the goods of the plaintiffs which were in the basement at the time. The plaintiffs in their complaint alleged that they sustained $3,000 actual damages and demanded judgment for $9,000. They allege that the defendants wrongfully broke into the basement and cut off the. steam pipes, but no damages recoverable by plaintiffs are alleged in that regard. The plaintiffs also allege that the defendants after entering the premises appropriated to their own use and carried away a large quantity of merchandise, and wrongfully,, wantonly and maliciously broke, damaged and destroyed a large quantity of goods, wares and merchandise of the. plaintiffs then in the basement. The plaintiffs gave a bill of particulars of *431the property which they claimed was damaged or destroyed, furnishing items aggregating $1,748.50. It is manifest that the plaintiffs greatly exaggerated the damages actually sustained by them, and the evidence offered in their behalf on the question of damages was neither satisfactory nor convincing. The value of the goods in the basement at the time was attempted to be shown by witnesses who were not shown to be competent to testify on the subject, and then it was left to the jury to guess at the damages upon evidence' tending to show the extent to which the goods were destroyed, without evidence showing the value of the goods in their damaged condition. The jury awarded the plaintiffs $1,375 damages. No substantial basis for this verdict is found in the evidence. It is evident that it has beeii awarded principally upon the ground of the wrongful trespass. The indefinite and inconclusive nature of the evidence relating to the question of damages rendered it impossible for the learned trial justice to discover a proper basis for reducing the verdict as a condition of denying the motion for anew trial, and fairly warranted the order setting aside the verdict and granting a new trial as to the defendant Eyan.

The ruling of the court upon the trial in granting the motion of the defendant Sartirana for a dismissal of the complaint as to him did not require the entry of a formal order, and was alone sufficient authority for the entry of the judgment. The order, therefore, being entirely unnecessary, was not appealable, and the appeal therefrom should be dismissed.

With respect to the appeal from the judgment dismissing the complaint as to Sartirana, we,are of opinion that the action of the trial court should be sustained. Doubtless, one partner is liable for the torts of another, committed in the course of the copartnership business, and for torts for which authority from him would not be presumed, but which he has ratified. (Fiero Torts, 107-111; Pars. Part. 150; 1 Lindley Part. [Ewell] *299 ; Story Part. [Gray’s ed.] § 166; *Chester*v. Dickerson, 54 N. Y. 1; *Castle*v. Bullard, 23 How. [U. S.] 172.) There is, however, in this case no evidence of any ratification by the defendant Sartirana of the wrongful acts of the defendant Eyan, nor is there evidence that the former participated therein. Moreover, it does not appear that they were copartners or that the defendant Sartirana was interested with Eyan in *432the hotel business. The mere fact that the defendants had leased the premises is not sufficient to justify the inference of copartnership in conducting the, hotel thereon. The learned' counsel for plaintiffs made an ineffectual effort to show that the defendants brought an action against the plaintiffs to enjoin them from preventing the cutting off of the steam pipes by these defendants, hut it was not shown that the-defendant Sartirana authorized the commencement of that action, and the documentary evidence was not offered. The plaintiffs were, therefore, properly nonsuited as to the defendant Sartirana for failure to connect him with the alleged trespass and damage to their property.

It follows that the order setting aside the verdict and granting a new trial/as to the defendant Ryan should be affirmed, with costs, and the appeal from the order directing a nonsuit as to the defendant Sartirana should he dismissed and the judgment of nonsuit should • he affirmed, with costs.

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

Order as to defendant Ryan affirmed, with costs, and appeal from order as to defendant Sartirana dismissed and judgment of nonsuit affirmed, with costs. Settle order on notice.