BAWITZBR t7. W'I'.tift.
WYATT It aL
CoNNOR fl. SAMB.
(c-trcwtt COUrt, S. D. CaUfO'mf.a, April 1(, 18110.)
ReV'. St. .N. Y. pt. 2, e. 4, tit. 1, § 7, upon the formation of limited partnerships, r&quires that'an affidavit of one or more general partners shall be 1lled with the original certificate, stating that the sum .therein speqi1ied to hal'e been contributed by special partner was actually and in good faith paid in cash. Held tnat, on a auit to charge a special ass general partner; an· answer whien, instead of an averment that Buch sum was paid t alleges that suell aftldavit duly filed, is not de-. murrable" since the affidavit Itself, if given in. evidence, would be prima JaclI proof ofsbchpayment.
At Law. On demurrer t<), the answer. Rothchild &- Ach and Brunson,. Wilson &-. Lamme, for plaintiffs. Dooner &- Burdett, for defendants. Ross, J. In this case the plaintiffs seek to charge the defendant Newhall as a general partnf:lr in the firm of C. A. Wyatt & Co., composed of the defendants Wyatt and and. heretofore existing and doing business in the state 'of New York. To the complaint, Newhall has answered, and among other things sets up that he was a limited partner, only, in the firm, and that prior to the commencement of this action the business of the firm was suspended, and the firm practically dissolved, by the absconding of Wyatt; that subsequently, and also prior to the bringing ,of this suit, defendant Newhall ,pommenced an action against Wyatt in the supreme court of the state of New York, in which action a receiver was duly appointed by the court of all of the property and aseetS of the firm, which receiver qualified, and took into his possession all of its property and assets, which he still holds; that prior to the going into, effect of the copartnership, and to the commencement of business by ·the firm, the respective partners, under and pursuant to the provisions ofthe statutes of the state of New York proViding for the formation of such limited partnerships, acknowledged, and caused to be recorded and published, the certificate required by the statute; and that at the same time each of the partners filed his affidavit, in due form, setting forth that the amount specified in said certificate as contributed of the United by. the. special partner was actually paid in in . . States. .The pOint of the demurrer which has been filed to this defense is that the answer should expressly allege that the contribution of the special: partner waspaid:in, in cash, before the .certificate was filed. doubte,dly such payment must have been made before the protection afforded'bythe statute could attach to the specialparther. But tlia question now is one of and. the answer of the'defendant Newhall'seems:to me to comply with the requirements of the rule as stated inBates'Law of Limited Partnership at section 1991, and in the C888I
FEDEML . JlEPORTER,
cited by him in support of the text. It was held by the court in the . case of Bank v. Goulcr. 5 Hill, 315, that, the affidavit being a necessary part of the machinery for forming a limited partnership, it was properly given in evidence, along with the .certificate and other papers, for the purpose of showing that the requirements of the statute had been complied with, and that, Where the paperJ are regular and sufficient in form, they make out a prima facie case for the defendant that the partnership the .burden upon the plaintiffs of showing that something was wrong before they could the defendant as a g¢ne,ralpllrtner. IftJ:ieaffidavit is sufficient proofin the first instance of the fact of payment, it would seem to follow that-the allegation of the maJPrn;&()f such affidavit is sufficient; for it cannot be that it is necessary to altege a stronger case than it is necessary to prove. The demurrer is overruled. A similar order will be entered in the case of Connor v. W:Vatt and NewhaU, which was submitted at the same time as the present case, and in which the same point arises.
(Oircuit Court, D. Mtnne8ota. Beptember,l889.)
FELLOW-SERVANTS-FIREMAN AND TELEGRAPH OPERATOR.
A telegraph operator employed by a railroad company to give information in regard to the location of trains on the road, and to communicate to the operators on the trains instructions for running them, received by him from the train dispatcher, is a fellow-servant of the firemen on such trains.
.AtLaw. Motion by defendant to instruct the jury to find a. verdict for defendant. TheJRcts in this case are as follows: On November 3,1886, at 11:15 P. M ·· there was a collision between an east and a west bound freight train orthe defendant, at Tower City,Dak., seven-eighths of a mile east of Tower City station, whereby the plllintiff, a fireman on the west-bound train, was injured, and ·this action is brought recover damages for such injuries. The two trains at the time of the collision, and for some time prior thereto, had been .running on telegraphic orders emanating from the train. dispatcher at Jamestown, to the local operator at Tower City , which method of running said trains had become necessary from the fact that the east-bound train was a special, and was also continually losing time, and the west-bound train was some hours behind time. The stations along defendant's line, as far as are material in this case, are, comthe east, Casselton, Buffalo, Tower City, Valley City, and Jamestown. When the train was at Valley City, the westbound "train was at Casselton, and the train dispatcher at Jamestown, while· these trains were at these respective stations, telegraphed orders, which were duly delivered to the of each train, to meet each