(dissenting):
• I think the plaintiff was entitled to a verdict. Accepting as correct the statement in the prevailing opinion that “ the plaintiff was undoubtedly entitled to enforce liability for its claim against all those who were general partners in the firm of Fogg & Scribner, whether it knew of the composition of the membership of that firm or not, if it gave credit to the firm while the defendant was a member,” then, I think, the plaintiff was entitled to recover. Undoubtedly the transaction must have been such as involved a credit given *510to the firm of which the defendant was a member. As was said by the chancellor in Vernon v. Manhattan Go. (22 Wend. 190): “ The word ‘ dealing ’ is merely used as a general term to convey the idea that the person who is entitled to actual notice of the dissolution must he one "who has had business relations with the firm by which a credit is. raised upon the faith of the copartnership and this lias been approved by the Court of Appeals. The “ dealing ” which the plaintiff had with this firm prior to the institution of the new firm was a business relation which directly resulted in the giving of credit to the firm, under which stone was subsequently delivered. The new firm was constituted by an agreement dated February 1, 1890. The firm that had transacted business before that, and of which the defendant was á member, on the 14th of December, 1889, wrote to the plaintiff as follows :
“ Dear Sir.—Will yon kindly quote us price for say 25,000 cu. yds. stone for crib filling at East 138th Harlem river.
“Respy. FOGG & SCRIBNER.”
This was an invitation to make a tender for the delivery of-the stone for a work which the old firm was under contract to perform for the city of New York. In answer to this letter the plaintiff’s president had several interviews with a member of the firm of Fogg & Scribner prior to the organization of the new firm. The result of the negotiation -was an agreement' by -the^ plaintiff to furnish 25,000 cubic yards of stone to put in a crib on the Harlem river at or near One Hundred and. Thirty-eighth street, which was finally consummated on the sixth of January. This Understanding, which was called by the plaintiff’s president “a contract,” was verbal; . and as testified to by him : “I agreed to furnish him' (the defendant firm) the stone such as he would order at- so much a cubic yard to him. And there was no time particularly fixed when -he was to order it, or how much; it was up to about 25,000 cubic" yards more or less for the crib to be filled. He was to order it any time. he saw fit, and subsequent to that time we had agreed upon the price, which was 65 cents. At any time he sent me word they needed stone, I sent it around.” It seems to ■me that it was immaterial that this was a mere verbal contract which minht have been avoided as within the Statute of Frauds. The negro*511tiation was then complete. The parties had arrived at an understanding under which the plaintiff acted in delivering the stone and under which the defendant acted in receiving it. . This agreement was between the plaintiff and the firm of which defendant was a member. The stone was purchased for and was actually used in the completion of a contract made between the old firm and the city of New York, which so far as appears was never formally transferred to the new firm. One of the members of the new firm testified that this contract with the city of New York was uncompleted at the time the new firni was organized, and that the new firm “ took that over ; ” bnt it does not appear that the old firm was, in any way, released from its liability to complete its contract. There was no formal dissolution of the old firm, no notice was given to the plaintiff that a new firm had been organized which would cony out and be liable for the arrangement under which the stone was to be delivered, and so far as appears there was no formal transfer of the assets of the old firm to the new firm. The arrangement under which the plaintiff’s stone was furnished was made with the old firm. The stone so furnished was used for the completion of a contract made by the old firm and which the old firm was bound to complete and which, so far as appears, was actually completed by either the old firm, or the new firm acting for it. Thus, the business dealing was directly with the old firm. The credit that was given was under the arrangement made with the old firm, and it was to the old firm that the plaintiff had a right to look for the payment of the stone furnished under this verbal agreement; and for such stone I think the old firm responsible.
Exceptions sustained, new trial ordered, costs to defendant to abide event.