I agree that the judgment should be reversed and that a new trial should be ordered, but riot upon the ground assigned in the prevailing opinion. I think that the statement made to E. G. Dun '& Co.,, in the' name of the defendants, was competent eviderice. The plaintiff and the defendants formed a‘ copartnership' on the 14th day of February,. 1903, and-by the interlocutory - judgment it was’ decreed *399that that copartnership continued, until the entry of that judgment, which was on the 10th day oí Wprii, 1905. The statement was made to Dun & Oo. on the 15th day- Of TOhr nary, 1905. It appears that long prior to that date and from bn ' or about the 12th of March, 1904, the defendants excluded the plaintiff from participation in the management of the business apd took charge thereof and assumed to conduct the same as their o,wn • under the firm name of “ Bosenfeld & Weisman.” They, therefore,- at the time of making this statement, were in the exclusive charge and possession of the firm assets and business and by the-.statement, represented that it was their own. There can be no dbhbt btit that the statement might have been relied upon by third'- parties and would have been binding upon both defendants, even though it was used by one without the knowledge or consent of the other. (Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31; Tindle v. Birkett, 171 id. 520;) It seems to me quite clear that in these , circumstances the statement was presumptive év-idence in favor of the ousted partner, subject, of course, to explanation and proof of the true facts by the defendants. While I think.the statement was competent evidence, I am of opinion, in view .of-tlíé fact that it was shown that many items therein were merely.-estimates and not even approximately correct, that the court gave it undue weight.
Moreover, I am of opinion' that the learned referee and Special. Term erred in ruling that filie,, interlocutory judgment conclusively established the amount with which the defendants are chargeable on account of the fixtures contributed to the business originally by Weisman, as part of his share of .the capital, and appropriated by. the defendants with the other assets of the firm, and in excluding evidence of their value at the termination of the copartnership.
Judgment reversed, referee discharged, accounting ordered before another referee, costs of appeal to appellants to abide event.