Victoria L. Stanfield, Appellant, v. The Knickerbocker Trust Company, as Executor, etc., of Mark M. Stanfield, Deceased, and George O. Stanfield, Respondents

Victoria L. Stanfield, Appellant, v. The Knickerbocker Trust Company, as Executor, etc., of Mark M. Stanfield, Deceased, and George O. Stanfield, Respondents. Partnership—admissions of a deceased partner as to its existence, competent—parol evidence as to the contents of lost hooks of account. Where an action is brought to recover money, alleged to have been loaned to a partnership, the admissions of a deceased person that he was a partner in the firm are competent. Where the loss or disappearance of the books of a partnership is proved, parol evidence is admissible to show the contents of the books, and such evidence may properly be given by a person who kept the books in question. ' Appeal by the plaintiff, Victoria L. Stanfield, from a judgment of the Supreme Court in favor of the defendants, entered upon the decision of the court at Special Term, dismissing the complaint upon the merits. The action was brought to recover money alleged to have been loaned by the plaintiff to a co-partnership. The plaintiff’s husband, George 0. Stanfield, was concededly a member of this co-partnership, and it was claimed that his father, the deceased, was his co-partner. The main questions involved in the case were whether the deceased was a member of the co-partnership, and whether the money was loaned by the plaintiff to the co-partnership, or whether the loans were to her husband individually. The trial court decided both these questions in favor of the defendant executor. Archibald O. Shenstone, for the appellant. ■■ William Allen Butler and John Notman, for the respondents. [MAJORITY — Williams, J.:] Williams, J.: It seems to us that there was abundant evidence to establish both the co-partnership and the co-partnership loan, and that the court was in error in dismissing the complaint upon the merits, even on the evidence admitted on the trial. But more than this, we are of opinion that the trial court erroneously excluded evidence offered by the plaintiff and objected to by the defendants, which requires a reversal of the judgment. The witness Frederick H. Smith testified that just before the death of the deceased, he had a conversation with him about the business his son, the plaintiff’s husband, was carrying on, and the witness was then asked if in that conversation the deceased said anything about his being a partner in the business. The court refused to permit the witness to answer this question. The plaintiff testified to having made the loans, delivering the money to her husband, and she stated the conversation she had with her husband in reference to the loans at the time they were made. She further testified that the loans were made to the co-partnership, and that a full account of such loans and the payments made thereon was kept in the co-partnership books. The witness Wingfield G. Burton was called as a witness and testified that he was in the employ of the co-partnership at the time that the loans were alleged to have been made, and kept the books-of account; that since the death of the deceased he had made diligent search for the books and had found some of them in the cellar of the store among old rubbish, and among them the covers of the-books in question, but the inside of these books have been torn out and taken away and he could not find them. He was then asked to state the contents of the books, what account with plaintiff was kept on the books while he was bookkeeper, what amount of loans from the plaintiff to the co-partnership and what accounts of payments to her thereon were entered in such books, and the amount owing to her as appeared on the books. The court refused to permit this evidence to be given. We think the loss or - disappearance of the books was sufficiently shown to entitle the plaintiff to give parol evidence of their contents. Mr. Donahue was called as a witness and was asked to state the conversation between himself and deceased with reference to the co-partnership, but the court refused to allow him to do so on the ground that the conversation was privileged. We think that no such privilege was shown. These are some of the rulings excluding evidence offered on the part of the plaintiff which seem to us to have been erroneous. We think the judgment should be reversed and a new trial ■ordered, with costs to the appellant to abide the event. Babrett, Rumsey and Patterson, JJ., concurred; Van Brunt, P. J., concurred in result. Judgment reversed and new trial ordered, with costs to appellant to abide event.