Reinhold Boeklen, Appellant, v. John A. Hardenbergh, impleaded, etc., Respondent

Reinhold Boeklen, Appellant, v. John A. Hardenbergh, impleaded, etc., Respondent. (Submitted January 25, 1875; decided February 2, 1875.) Where an answer of the court to a question of the jury is not responsive, it will not be construed as a refusal to Charge upon the points inquired of, and an exception thereto will not be available unless the attention of the court is called to the fact and an opportunity thus given to correct the misapprehension. Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of defendant Hardenbergh, entered on a verdict and affirming an order denying a motion for a new trial. This action was brought to recover for services alleged to have been performed by plaintiff for defendants as partners. The services were as draughtsman, in drawing plans and estimates for building docks upon a plan bringing into use a patent, in which the evidence showed the defendants had a joint interest. The defendant Hardenbergh, who alone appeared and defended, claimed that he had no interest in the work in connection with which plaintiff was employed and was not connected therewith in any way, save that he had loaned and advanced money to defendant Smith to be used in its prosecution. After the jury had retired they returned to court and asked for instructions on the following points: “ 1. Whether the advancing of money by Hardenbergh, for the enterprise, made him a partner of Smith; and, “ 2. Whether the fact that Hardenhergh owned an interest in the adventure for which this work was performed, made him liable % ” The court answered as follows: “ The fact that Hardenhergh owned an interest in the patent to develop which this work was performed, does not necessarily of itself make him a partner of Smith, and liable to the plaintiff. But if yon find that a partnership agreement actually existed or that Hardenhergh held himself out or allowed himself to be held out as Smith’s partner, then the plaintiff is entitled to recover.” Plaintiff’s counsel excepted to such part of the instruction as applied to the second of the questions. Foulke & Malocsay for the appellant. Corvers & Lyman for the respondent. It is too late to raise the question in this court that the answer of thé judge was not responsive to the question of the jury. ( Wyman v. Hart, 12 How. Pr., 122; Lansing v. Wiswall, 5 Denio, 218; Jones v. Osgood, 6 N. Y., 233; Walsh v. Ins. Co., 32 id., 440.) [MAJORITY — Andrews, J.] Andrews, J. After the judge had charged the jury, and they had retired to consider their verdict, they returned into court, and asked instrúctions as to two propositions, one of which was, “ whether the fact, that the defendant Hardenbergh owned an interest in the adventure for which the work was performed, made him liable.” The judge said in answer, that the fact that he owned an interest in the patent did not necessarily make him a partner of Smith, and liable to the plaintiff. The instruction given was correct. Joint ownership with Smith in the patent, did not alone make them partners. (Porter v. McClure, 15 Wend., 187; Sage v. Sherman, 2 N. Y., 427.) The plaintiff excepted to the instruction given. It is quite clear that the judge understood the question to relate to an interest in the patent, and not to an interest in the enterprise in which the plaintiff’s services were rendered. It had been shown that Hardenbergh had an interest in the patent, and it is not certain, in view of the course of the trial, that the instruction given, did not relate-to the matter which was in the mind of the jury. They seemed to regard the answer as responsive and satisfactory. But if the answer was not responsive, the plaintiff should have called the attention of the judge to the fact, so that he might have had an opportunity to correct the misapprehension under which he labored. The judge did not refuse to charge upon the point presented, and a misunderstanding of the question, which must have been perceived by the plaintiff, should not be construed as a refusal. The exception is, therefore, unavailable, and is not a ground for reversing the judgment. (Jones v. Osgood, 6 N. Y., 233; Walsh v. Wash. Ins. Co., 32 id., 440.) The judgment should be affirmed with costs. All concur. Judgment affirmed.