and 140 New York State Reporter The court correctly charged the jury that the measure of damages was the difference between the actual value of the stock at the time of its purchase and what its value would have been if the alleged false statements had been true. There was no evidence to show the value of the properties, except the undisputed testimony of a witness called by the plaintiff to the effect that they are now worth $1,500,000. If so, the stock, which the plaintiff bought as a speculative venture at 4134, is now worth more than par, which may account for the fact that he has elected to hold to his bargain and claim damages. There was an attempt made to show market value; but as the stock was not traded in, and concededly had no market value, such evidence must be disregarded, even though we assume that it was properly admitted. Intrinsic, not market, value had to be shown, and the plaintiff made no attempt to show this. But, if that had been shown, I do not see how a jury could have told from this evidence how much more the stock would have been worth had the representations been true. The representation that the Cherokee Company was prosperous and had paid dividends to 1898 may or may not have been material upon the question under consideration. If its failure to pay dividends was due to extravagant and poor management, as the testimony of the only witness called on the subject at least suggests, it could have had little bearing on the actual worth of the properties; whereas, if it had been due to some inherent difficulty in the operation of the properties themselves, the representation would have been material. But how that or the representation respecting the cost of producing iron at the Cherokee furnace affected the value of the stock was not shown, although the question was susceptible of definite proof. The plaintiff cannot have his bargain and recover damages, without proving any. The judgment should be reversed. GAYNOR, J. (dissenting). It does not seem to me that the refusal to charge was error. It does not seem to me possible that it can be error, and I should be greatly surprised to find any authority even lending countenance to a claim that it is. The request was that if the jury find "that this prospectus was prepared from information furnished to the defendants or to Archer Brown, then the jury must presume that such information corresponds to the contents of the prospectus, and even though such information was false, yet the defendants would not be liable therefor." Is it so, that one who sells worthless stocks by a false prospectus, is exonerated of liability for deceit for false statements in such prospectus, by simply proving that some one, any one, "told him so"? Must a judge charge that? It is for those who make such requests to make them technically accurate in order to get a good exception on their refusal. We are often told things by untrustworthy people, whom we should not and do not believe; and reputable people tell us things which we should not always believe, and which, indeed, we know to be untrue, or that they are not qualified to speak of. Are we to send this case back for the next trial judge to charge this sweeping request? Nor does it seem to me that refraining from saying in a circular that the statements therein are made on personal knowledge, requires a conclusion to be drawn that they are not, but the contrary. Any one who says a thing without qualification makes it, prima facie, his own positive statement. (121 App. Div. 544.) BARON V. LAKOW et al. (Supreme Court, Appellate Division, Second Department. October 18, 1907.) PARTIES PLAINTIFFS-UNITY OF INTEREST-PARTNERSHIP-CAUSE OF ACTION. Under Code Civ. Proc. § 448, providing that of the parties to an action those who are united in interest must be joined as plaintiffs or defendants, except that, if the consent of any one who ought to be joined as a plaintiff cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint, where one partner uses firm money to pay his individual debt without the consent of the other partner, the cause of action to recover the money being in the partnership, an action therefor cannot be maintained by the other partner alone, though he joins as defendant the partner so using the money; the complaint or bill of exceptions not alleging, and the record not showing, any reason why the defendant partner was joined as defendant, rather than as plaintiff, or that his consent to act as plaintiff could not be obtained, but the bill of exceptions merely calling him an absconding partner, and the evidence showing that he had always remained in the city, though he ceased to take part in the partnership transactions a month before commencement of the action. Appeal from Municipal Court, Borough of Brooklyn, Fifth District. Action by Henry Baron against Samuel Lakow and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered. Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ. Julius C. Rosenthal (Charles Goldzier, on the brief), for appellants. Saul J. Baron (David Gerber, on the brief), for respondent. HOOKER, J. The complaint was oral, as follows: "For money had and received for use of the plaintiff." The bill of particulars filed by the plaintiff states that the action is brought by the plaintiff, a member of the firm of M. Baron & Co., composed of the plaintiff and the defendant Green, against Green, an absconding partner, and the defendant Lakow, for the return of partnership money wrongfully taken by the defendant Green and delivered to the defendant Lakow, who had no claim against the firm in any amount, and who knew at the time of the receipt of such money that he had no such claim. The plaintiff had judgment for the full amount of the partnership moneys paid to the defendant Lakow by the defendant Green, and the defendants appeal. It may be admitted, so far as the decision of this case is concerned, as contended by the respondent, that one partner cannot apply the partnership funds to the discharge of his own private debt without the consent of the other partner, and that without such consent the title of the partnership to the property is not divested in favor of the private creditor, whether the latter knows that the property belongs to the partner and 140 New York State Reporter ship or not, and that the right of the partnership depends, not upon whether the creditor knew it was partnership property, but rather upon the fact whether the other partner had assented to such application. N. Rogers & Sons v. Batchelor, 12 Pet. 221, 9 L. Ed. 1063. This principle, however, is not decisive of the questions raised on this appeal. Whatever moneys were paid to Lakow were partnership moneys, the title thereto being in the partnership rather than in the plaintiff; and this especially so since there had never been any dissolution of the partnership, accounting, or other closing of the partnership existence. The complaint states that the money was had and received for the use of the plaintiff. The bill of particulars asserts that the action is for the return to the plaintiff of partnership money. The cause of action resided in the partnership, and not in one of its members. The plaintiff, however, seeks to sustain his judgment in view of the fact that he joined his copartner as defendant, and refers to section 448 of the Code of Civil Procedure, which provides: "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants, except as otherwise expressly prescribed in this act. But if the consent of any one, who ought to be joined as plaintiff, cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint." The appellants contend that this provision of the Code does not apply to actions in the Municipal Court of the city of New York; but that question is unnecessary to determine, for it is apparent that the plaintiff is not assisted by its provisions. It is to be observed that no reason is stated in the complaint or in the bill of particulars why the defendant Green, one of the copartners, was joined as defendant, rather than as plaintiff. Further than this, the section permits joining as a defendant one who ought to be plaintiff only where his consent to act as plaintiff cannot be obtained. The record of this case not only fails to show that it was impossible to obtain the consent of Green to join as a plaintiff, but also discloses in the cross-examination of the plaintiff himself that no attempt was ever made to obtain Green's consent. Nor is it sufficient that the defendant Green is called in the bill of particulars an absconding partner, for the proof wholly fails to sustain the assertion. It is true that he ceased to take part in the transaction of the partnership business about a month before the commencement of this action; but he was resident in the borough of Brooklyn at the time the partnership was made in December, 1905, continued such. at least until July, 1906, and was still such resident at the time of the trial, and no suggestion or intimation appears in the record that he has ever left the borough of Brooklyn, or even so much as changed his place of residence. No reason appears why he should be called an absconding partner, and none why his consent to join as a plaintiff should not have at least been sought before the plaintiff undertook to sue in his own name for the recovery of moneys, the title of which was in the partnership. The judgment must therefore be reversed, and a new trial ordered; costs to abide the event. All concur. (121 App. Div. 571.) PITTEL v. BURKHARD. (Supreme Court, Appellate Division, Second Department. October 18, 1907.) NEGLIGENCE-CHILDREN-CAPACITY-QUESTION FOR JURY. In an action for injuries to a girl a little over six years of age, whether she was sui juris held properly submitted to the jury. [Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, 88 347-348.] Appeal from Trial Term, Kings County. Action by Julia Pittel, an infant, by Frank Pittel, her guardian ad litem, against Jacob Burkhard. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Affirmed. Argued before JENKS, HOOKER, RICH, MILLER, and GAYNOR, JJ. John Vernou Bouvier, Jr., for appellant. RICH, This action is brought to recover damages sustained by an infant six years of age in consequence of being run over by one of defendant's loaded trucks. There is sufficient evidence to sustain the finding of negligence on the part of defendant's driver of the truck, and that at the time of the accident the driver was the servant of defendant. The learned trial justice submitted to the jury as a question of fact whether the infant was sui juris or non sui juris, charging them that: "If you find that the driver of this truck was the servant of Jacob Burkhard, the defendant, and that he was guilty of negligence in moving the truck at the time and in the way that he did, and that that negligence injured this little child, and that this little child, if sui juris, exercised that reasonable degree of care which children of that age, intelligence, and experience ordinarily do exercise, or, if non sui juris, that the parent exercised that reasonable degree of care which people of ordinary prudence exercise under similar circumstances, in permitting the child to be upon the street, then this plaintiff is entitled to a verdict. Unless you find all three of those things, then the defendant is entitled to a verdict." No exceptions were taken to this part of the charge, although defendant excepted to the submission to the jury of the question whether the infant was or was not sui juris, at the close of the evidence. It is now urged that it was error to leave to the determination of the jury the question of whether the infant plaintiff was sui juris or non sui juris, as there was no evidence before it upon that question beyond the fact that at the time of the injury she was a little over six years of age, and their determination of this question is the result of mere speculation. The child was not called as a witness, and, so far as the record shows, was not present in court or seen by the jury; but her parents testified to instructions given her and their observation of her conduct while playing in the street, which, in addition to thepresumption arising from her age that she was non sui juris, required the submission of the question to the jury as one of fact, and is and 140 New York State Reporter sufficient to support the verdict. Kaplan v. Metropolitan Street R. Co., 98 App. Div. 133, 90 N. Y. Supp. 585; Gerber v. Boorstein, 113 App. Div. 808, 99 N. Y. Supp. 1091; Costello v. Third Avenue Railroad Co., 161 N. Y. 317, 55 Ñ. E. 897. There are no prejudicial errors disclosed by the record, and the judgment and order must be affirmed, with costs. All concur. (121 App. Div. 556.) OUTHOUSE v. BAIRD. (Supreme Court, Appellate Division, Second Department. October 18, 1907.) 1. LANDLORD AND TENANT-LEASES AND AGREEMENTS-CONSTRUCTION-CONDITIONS-ACTIONS FOR BREACH. Defendant leased his farm to plaintiff upon the agreement that, on sale of the premises during the term, the plaintiff would vacate on 30 days' notice, and that defendant would pay him for any crops planted prior to the notice, the benefit of which he could not reap. Plaintiff, on receiving notice to vacate, refused to do so, and was removed by an order in proceedings in the County Court. Held, that he could not recover the value of the crops planted by him, since he did not vacate according to the agreement. 2. SAME-WAIVER OF FORFEITURE. Defendant's acceptance from plaintiff, after his removal from the premises, of the rent due up to that time, did not constitute a waiver of the refusal to vacate on the notice given. 3. SAME. Under this agreement, the plaintiff was not entitled to recover the value of crops planted after the notice to vacate was given him. 4. TRIAL-PROVINCE OF COURT AND JURY IN GENERAL-DETERMINATION OF QUESTIONS OF LAW-SUBMISSION TO JURY. The judge cannot turn over to the jury questions proper for the court to decide. [Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 318.] Appeal from Trial Term, Westchester County. Action by Joseph Outhouse against David G. Baird for breach of contract contained in a lease. From a judgment for the plaintiff, and an order denying defendant's motion for a new trial, defendant appeals. Reversed. Argued before JENKS, HOOKER, RICH, MILLER, and GAYNOR, JJ. Benjamin Fagan, for appellant. Nathan P. Bushnell, for respondent. GAYNOR, J. The complaint alleges that on February 2, 1904, the defendant leased his farm to the plaintiff for the year beginning April 1, 1904, and ending April 1, 1905, "upon the express agreement and condition" that if the defendant "should at any time during such term sell said premises" the plaintiff "would vacate said premises upon receiving 30 days notice so to do, and that the defendant herein would pay to the said plaintiff the reasonable value of any crops planted upon said premises prior to the receipt of said notice the benefit |