William T. Hallenbeck, Respondent, v. Egbert Z. Smith, Appellant, Impleaded with Alonzo E. Smith

William T. Hallenbeck, Respondent, v. Egbert Z. Smith, Appellant, Impleaded with Alonzo E. Smith. Stipulation limiting the issue — effect of a statement in the case- that ‘ ‘ the above is all the testimony taken.” ■ ■ A stipulation m the following form: “It is hereby stipulated that the abovemien- . tioned case of William F. Hallenbeck, as plaintiff, against Egbert Z. Smith and another be tried, and the-other three above-named cases abide by the result of the trial of that case as to the question of partnership litigated; and that judgment be entered in each of said cases above mentioned, wdth costs, including the costs of trial, if the verdict be in favor of plaintiff, for the amounts-claimed in the several complaints, with interest; if verdicf in favor of defendant, judgment to be entered in all above cases of dismissal of complaint, with all costs and of trial in each case,” makes the question of partnership, especially in view of the fact that such construction was adopted by the parties at the trial, the only issue to be tried, although the answer sets up a general denial. A statement contained in.a case upon appeal that the above is all the testimony taken,” is equivalent to a statement that the case contains all the evidence. Appeal by the defendant, Egbert Z. Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 13th day of October, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of ¡November, 1899, denying the defendant’s motion for a new trial made upon the minutes. Thomas Young, for the appellant. Henry J. McCormick, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: This action was brought to recover the balance of an account for the board of workmen and for supplies furnished to the defendants, who, it is alleged, were partners. An answer of general denial was interposed by Egbert Z. Smith only. The appellant urges that the judgment should be reversed for failure of proof that any goods were sold or were delivered at any agreed price, or that any board was furnished at any agreed price or for any time, or that there was any value of goods or worth of board. The plaintiff replies that'under a stipulation the only issue tried was that of partnership. The record shows that there were four actions pending between different plaintiffs (represented by the same attorneys) and these defendants, and that on October twelfth, the. day before trial, the respective attorneys stipulated in writing, under a caption of the four actions, including the case at bar, as follows: “ It is hereby stipulated that the above-mentioned case of William F. Hallenbeclc as plaintiff against Egbert Z. Smith and another be tried, and the other three above-named cases abide by the result of the trial of that case as to the question of partnership litigated; and that judgment be entered in each of said cases above mentioned, with costs, including the costs 'of trial, if the verdict be in favor of plaintiff, for the amounts claimed in the several complaints with interest; if verdict ■ in. favor of defendant, judgment to be entered in all above cases of dismissal of complaint,, with all costs and of trial, in each case.” A resettlement of the case placed this stipulation.in the record.- I think.that the parties stipulated "that partnership was -the only issue. If the amount of-plaintiff’s claim was to be litigated, why should .the defendant stipulate that if the verdict he' for the plaintiff, the amount thereof should be that asked in the complaint? And yet the stipulation reads that, if the verdict be in favor of the. plaintiff, judgment shall be entered in. each of said cases above mentioned, and so plainly .includes the case at bar. This was the practical interpretation of the parties on the trial. There was no evidence offered by either party save as to the question of partnership. Ho motion. Avas made either at the close of .plaintiffs case or at the, close of the whole case: The learned trial justice submitted only the question of partnership to. the jury in a careful and elaborate charge, Avherein, referring to the question of partnership, lie stated: “How .that is the sole point submitted to you.”: The record shows neither exception, to the charge nor requests for further instructions. This court cannot -pass outside of the limits marked by the stipulation of thé respective parties. (Bleakley v. Sullivan, 140 N. Y. 175, 181.) The learned counsel for the plaintiff further insists that we cannot review the testimony because the record contains a statement “ the above is. all the testimony taken,” and cites authorities based .upon the proposition that this expression is .'not equivalent to. a states merit that the case contains all the evidence. Heretofore this court has hesitated to follow those authorities (Zimmerman v. Union R. Co., 3 App. Div. 219), and its-hesitation is justified by the decision in Rosenstein v. Fox (150 N. Y. 354, 360) which i's conclusive against the contention of the plaintiff here. . . The evidence as to the partnership required the submission of the question to the jury. There -was proof that the defendants Avere éngaged in a common work; that the defendant Egbert had tire general superintendence of the workmen; that he had obtained the credit, stating that the defendants AVouldhe responsible; that he had made several declarations of ‘his interest;, that his alleged partner had made similar declarations in his presence,, and that there had been dealings between other persons and the defendants as partners. Similar testimony was considered by this court in Griffin v. Carr (21 App. Div. 51, 52), where, speaking of the statements of the defendant, Cullen, J., said: “ These declarations would not only estop him from denying the partnership as against those who had sold goods on the faith of the declarations, but were also competent evidence of the partnership, itself in favor of others as to whom there may have been no estoppel.” .The proof offered by the appellant was his own testimony and certain facts of unimportance as compared with the testimony for the plaintiff. Judgment and order affirmed. All concurred. Judgment and order affirmed, with costs.