Williams v. Goldberg

PETERS, P. J.

Plaintiff, J. O. Williams, brought this action for the dissolution of a partnership alleged to exist between himself and defendant, S. J. Goldberg. The defendant denied that a partnership existed between the parties, and alleged that plaintiff was in fact the manager of a hotel operated by defendant and therefore an employee of defendant. The trial court found that plaintiff was manager of defendant’s hotel and that no partnership existed, and gave judgment for defendant. From this judgment plaintiff appeals, making two main contentions: (1) That the basic findings are totally unsupported, and (2) that the trial court erred in admitting into evidence a certain exhibit.

The appeal purports to be on an engrossed statement of facts as provided by rule 7(b) of the Rules on Appeal. That section permits the appellant, in lieu of filing the reporter’s and clerk’s transcript, to appeal on a settled statement. The settled statement must contain certain designated documents and a “condensed statement of the oral proceedings.” After the appellant has filed his proposed statement, the respondent may file amendments, and in that event it is the duty of the trial judge to settle the statement. Rule 7(d) provides that the trial judge “shall settle the statement and fix the time within which the appellant shall engross it as settled. Within the time so fixed the appellant shall engross the statement in accordance with the order of the judge and shall serve and file the engrossed statement.”

Appellant, in attempting to appeal under this method, as part of his proposed statement included copies of all documents required under rule 7(b), referred to certain exhibits, and prepared a proposed statement of facts. This statement does not purport to summarize the actual testimony as given

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by the witnesses, but, by means of conclusions, states what appellant thinks the evidence shows. The statement recites that “at the trial the plaintiff introduced evidence showing that on the first day of May, 1942, he and the defendant Goldberg became and were co-partners and owners share and share alike, in the hotel business . . ., and that thereafter the said defendant did the things and committed the acts alleged in the complaint on file in said action as constituting grounds for the dissolution of said partnership . . . The defendant on the 20th day of April, 1943, offered in evidence at the trial of said action a certain paper purporting to be a proposed ‘ReOrganization Agreement,’ never signed nor executed by the parties plaintiff or defendant, and offered it in evidence by the defendant as disproving the existence of said co-partnership ; whereupon the plaintiff objected to said offer . . . upon the grounds that it is irrelevant, incompetent and immaterial and without foundation and not signed or executed by the parties, nor shown to have been signed or executed by them or either of them, nor by the plaintiff nor assented to by him. The court overruled the objection and admitted the said alleged and proposed Re-Organization Agreement in evidence as proof against the existence of said co-partnership, and did upon the basis of it decide the case in favor of the defendant S.