I am unable to concur in the conclusions reached by the chief judge in his opinion. I find no evidence in the case that William J. Jenner in his lifetime never had a copartner in his business. The only testimony given upon the subject appears upon the cross-examination of Howard Hasbrouck, in which he distinctly states that he never knew Jenner in his lifetime and could not testify with his own knowledge upon the subject. He was asked the further question: "There is no dispute that Jenner Company was William J. Jenner? Answer. That was my understanding. You ask me from knowledge. I do not know it as a matter of fact. That is my understanding. Q. And the administratrix has told you so? A. I do not think I have ever asked her. The Court: The administratrix has signed that agreement which set forth this fact. This is not an agreement signed by the witness. The witness: I think that is the fact undoubtedly that he did business alone. Q. So the words `and company' are really fictitious? A. Yes, I presume so." This, as I have stated, was cross-examination, and the most that can be claimed for it is an understanding on the part of the witness and an assumption that Jenner did business alone. But it distinctly appears that the witness had no knowledge upon the subject, he never having been acquainted with Jenner in his lifetime. On the other hand, there is no provision in the contract reciting that Jenner did business alone, or that he never had a copartner. But instead thereof there is a distinct admission on the part of the defendant Julian B. Shope that he was engaged in business with Jenner previous to his decease, by which they deducted the expenses and disbursements made in connection with each particular transaction, and then, in accordance with their custom, divided the fees between them. This, in effect, constituted them copartners, doing business under the name of Jenner Company, in accordance with the provisions of the statute. *Page 74
The order of the Appellate Division should be reversed and that of the trial court affirmed, with costs.
GRAY, WERNER, WILLARD BARTLETT, CHASE and COLLIN, JJ., concur with CULLEN, Ch. J.; HAIGHT, J., reads dissenting opinion.
Order affirmed, etc.