Opinion
Argued January 18, 1877
Decided January 30, 1877
Rufus W. Peckham for the appellant. George Miller for the respondent.
It was not error for the judge to direct a verdict subject to the opinion of the court at General Term. There was no conflict of evidence as to the material facts, or any doubtful inferences to be deduced from the facts proved, nor any exception, except to the denial of the motion for nonsuit made when the plaintiff rested, and also at the close of the whole evidence. The same question raised by the motion for nonsuit was involved in the motion for judgment on the verdict.
1. The plaintiff, to establish that the defendant was a partner with William Adams in conducting the business of the Suffolk County Bank, offered in evidence a copy of a record of the banking department, certified by the superintendent, purporting to be a copy of a certificate filed in the department, dated May 9, 1854, signed and acknowledged by the defendant, certifying that he was interested with William Adams in the business of the bank. The certificate contained the matters required to be stated by the act of 1854, in the case of a person becoming interested with an individual banker in conducting the business, and the statute makes such certificate evidence in all courts and places that the person signing and acknowledging it "is a general partner with the original banker in the business of banking, and as such is liable for all the debts and obligations created or made by such individual banker in the said business." (Laws of 1854, chap. 242, § 6.) No objection was made to the reception of the certificate in evidence. It is now claimed that the statute only makes the original certificate evidence, and that a certified copy was not admissible, also that no proof was given that the original certificate was signed by the defendant. These objections should have been taken on the trial, and the supposed defects might then have been supplied, by the production of the original certificate or by making a case for the introduction of secondary evidence. They were not raised by the exception to the motion to nonsuit on the general ground that no partnership had been shown, and it is too late now to take them. The case stands, therefore, in the same position as if the original certificate had been produced and proved, and the fact that in 1854 the defendant became a general partner with William Adams in the business of the bank, was, therefore, conclusively established. 2. In the absence of proof to the contrary, the presumption is that the partnership continued and was in force when the certificate of deposit was issued to the plaintiff. It is quite clear that it existed in 1863, when the first certificate was issued. The letter of the defendant of October 3, 1865, notifying the department that he had sold and transferred to William Adams his interest in the bank, the transfer to take effect as of July 1, 1865, is a distinct admission of the existence of the partnership to that time. 3. The fact that the partnership was discontinued in October, 1865, did not relieve the defendant from liability for subsequent deposits made by the plaintiff without notice of the dissolution. The deposit in 1863 constituted the plaintiff a dealer with the bank in respect of deposits, and the law presumes that the subsequent deposits were made on the credit of the copartnership, and both a dissolution and notice to the plaintiff or evidence equivalent to notice must have been shown to relieve the defendant from liability for the new transactions. 4. Proof that notice of the dissolution was published in two newspapers in the place where the bank was located, unconnected with any evidence that the plaintiff resided there or took the papers, was very slight if any evidence that he saw the notice. The plaintiff testified that he never saw the notice or heard of the dissolution. The jury would not, upon this evidence, have been justified in finding against the plaintiff on this question, and the court properly assumed that notice of dissolution had not been given. 5. It was immaterial whether the defendant was or was not present when the first or subsequent certificates were given. The partnership was established without resorting to proof that he was acting as a partner to the plaintiff. 6. The defendant was not a dormant partner, and as to the plaintiff his relation to the partnership remained unchanged until notice of the dissolution. He was in the origin of the relation, and when the dealings with the plaintiff commenced an ostensible and not a secret partner, and was such as to all persons dealing with the firm, and his liability to the plaintiff is not changed by the fact that the plaintiff did not know that he was a partner. (Parsons on Part., 33.) He trusted the copartnership whoever the persons might be who composed it. The public records disclosed the fact that the defendant became a partner in 1855.
Passing the question as to the power of the court to direct a verdict subject to the opinion of the court, it remains to consider whether the facts proved justified a recovery by the plaintiff. (1.) The defendant insists that the cause of action on the certificate issued in 1863, was barred by the statute of limitations. The action was commenced in 1871, and it is claimed that the right of action accrued immediately on the issuing of the certificate without previous demand. This question has been settled by authority. ( Downes v. The Phœnix Bank, 6 Hill, 297; Payne v. Gardiner, 29 N.Y., 146.) We think it is in accordance with the general understanding of the commercial community, that a bank is not liable to depositors except after demand of payment. The fact that a certificate is given on a deposit being made, payable on the return of the certificate, instead of leaving the deposit subject generally to check or draft, does not change the reason of the rule that the banker must first be called upon for payment before an action can be maintained. It would be unjust now to make a distinction between the cases, and sustain the defence of the statute of limitations, in cases like this where parties have relied upon the doctrine announced in the cases cited. (See Herrick v. Woolverton, 41 N Y, 600; opinion of GROVER, J.)
(2.) The plaintiff having a right until notice to treat the partnership as continuing, the alteration of the certificate in respect of the rate of interest, although made in 1871, after the dissolution in fact, must be deemed to have been authorized by the defendant.
The judgment should be affirmed.
All concur, except RAPALLO, J., not voting.
Judgment affirmed.