I concur as to the second cause of action because whatever error may *190have been committed as to a part of the claim amounting to twelve dollars is cured by the verdict of the jury which excluded from its award that amount.
As to the first cause of action, however, I dissent from the view of my colleagues. The learned judge below has held, that plaintiffs, a copartnership, cannot recover on a guaranty addressed to an individual who happens to be one of the members of the firm. This ruling he bases on Barns v. Barrow, 61 N. Y. 39, which in turn cites a decision of Chief Justice Marshall in Grant v. Naylor, 4 Crunch, 224. Defendants-appellants urge that these cases have been distinguished in Beakes v. DaCunha, 126 N. Y. 293, and again in Knit Goods Exchange, Inc., v. Halpern, 81 Misc. Rep. 218, on the principle that where it appears by parol testimony that the guarantor, although addressing one person, really referred to another party, and intended the guaranty to run to the latter, he will be held accordingly. But neither the Beakes case nor the Knit Goods case goes that far. In the latter there was a misnomer, practically equivalent to a clerical error. The- Beakes case is explained as one involving an ambiguity (always open to explanation) in the opinion of the Appellate Division in Duffy Co. v. Todebush, 216 N. Y. 297, affg. 157 App. Div. 688, which in turn, reversed the Appellate Term in 139 N. Y. Supp. 112. The opinion of the Court of Appeals in the Duffy case expressly disclaims any answer to the question whether the rule enunciated by Judge Marshall had ever been varied at all.
I think, therefore, that plaintiffs cannot successfully maintain this action. Moreover, even if plaintiffs could succeed upon proof that the defendant intended the guaranty to be for the'benefit of the firm, rather than of the individual to whom it is addressed, I cannot find in this record anything more than the *191proverbial “ scintilla ” of evidence to support a finding to that effect, and such finding would, therefore, be unwarranted. Matter of Case, 214 N. Y. 199, 203, 204. Although defendant was president of the doll company, he testifies affirmatively, and without contradiction, that he “ took no active charge. The place was in charge of Mr. DiG-ioia. ’ ’ Any inference, therefore, that he was familiar with the business of the doll company because he was its president is thus disproved. Plaintiff testifies: “ I had a personal conversation with Mr. Cohen while at his office, and told him that I wouldn’t deliver any more merchandise, etc., unless he personally would guarantee the account.” Later he says: “ He (defendant) did send me the guarantee.” When defendant is interrogated as to the circumstances under which the guaranty was given, he says: “Mr. Meyer wouldn’t sell liberty (Doll Company).” He also says in reply to the question of the court: “ ‘ Was it (the guaranty) sent without your authority? ’ ‘ I think I might have told the bookkeeper to send a guarantee to David Meyer.’ ”
In face of all this evidence I am of opinion that we cannot give such weight to a single answer of the defendant, which by the way, is fairly unintelligible, as to consider it proof that defendant intended the guaranty to be for the benefit of the firm. This answer was given on his direct examination, and was as follows: “ Q. When you got there [namely at the office of the doll company] did they inform you that they had sent a paper to David Meyer & Sons? A. They wrote' about wanting some glue—some merchandise — and wanted guarantee. I think the bookkeeper sent a guarantee to David Meyer Company.”
In my opinion, therefore, the judgment was proper and should be affirmed as rendered.
Judgment affirmed.