I concur in the opinion that there should be a new trial in this case. The verdict was directed upon the mistaken assumption that a partnership between Bushnell and the defendant was conclusively established. In my judgment, there was, to say the least, a question of fact upon that head to be submitted to the jury with appropriate instructions. The defendant had no interest whatever in, the capital *215of the adventure. He contributed nothing thereto but his services, for which, he says, Bushnell stipulated to pay bim one-third of • whatever profits might be made. If the defendant’s testimony be true, there would seem to have, been no joint .ownership of the shares which were bought and sold. . The jury might have concluded, upon the whole case, that there was.no partnership, but simply an agency. . The case, in the j>articulars indicated, is distinguishable from Manhattan Brass & Manufacturing Co. v. Sears (45 N. Y., 797), where there was not only a sharing in the profits as such, but a common interest in the stock of the company. It is more analogous to that class of cases where quasi partnership interests are given to superior clerics and valuable agents. There the principal (whether a firm or an individual) agrees to pay such clerk or agent for his services a certain proportion of the net profits, or a sum equivalent thereto. It is well settled that such an agreement does not constitute the clerk or agent a partner either inter sese, or as to creditors.
By the direction of the verdict, the defendant was held to the strictest partnership liability. That is, he was mulcted solely for Bushnell’s tort, without regard to his own innocence or guilt, knowledge or want of knowledge, or the existence of circumstances putting him upon inquiry. It follows, that if the partnership or joint adventure was not conclusively established there should.be a new trial. Nor can the direction be upheld upon the agency basis. The defendant exercised no control over the plaintiff's property. Bushnell placed the stolen bonds in the broker’s hands, as security against depreciation or appreciation, as the case" might be. "With this, the defendant had nothing to- do. He did not even know of what the security consisted. All he did was to give 'the brokers orders to buy and to sell. Such orders involved no intermeddling on his part with the collaterals. "Whether- there was any, and, if so, what margin, was a matter entirely" between the broker and Bushnell. The defendant simply operated upon the basis that the broker was willing (in. consequence of some arrangement with Bushnell) to execute his, defendant's, orders, on Bushnell’s account.
- There is one point as to which I prefer to -reserve my deliberate *216judgment until the question is directly presented. That is, as to the plaintiffs right, at all events, to recover wbat was actually received by the defendant for his one-third of the profits. I cannot think that this question is so entirely free from doubt as it seems to be to my brother Beady.
There was a sum of money due to the defendant by Bnshnell, which the latter paid by an order on his broker. At least, that is one view of it. It is, in my judgment, questionable whether the defendant, if innocent, chargeable with no notice, or not otherwise, put upon inquiry, is responsible for the means resorted to by the broker to raise the money wherewith to honor the order. That may well be roserved until all the facts are before the court upon a new trial.
Davis, P. J., concurred.Judgment reversed, new trial ordered, costs to abide event.