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App. Div.)

FIRST DEPARTMENT, MARCH TERM, 1899.

Rastus S. Ransom, for the appellants.

Jesse Stearns, for the respondent.

O'Brien, J.:

The only question presented below or here is whether the complaint states one or three causes of action - if the latter, then the Special Term was right in requiring that they should be separately stated and numbered. (Code Civ. Proc. $ 483.)

The complaint avers the marriage of Anne Maria Hunt with the defendant Byram L. Winters on the 25th of September, 1894, and that thereafter in the same year, and on the eighteenth of October, she made her will, giving the bulk of her property to him; that on the 20th of October, 1896, she conveyed to him all her real estate, and that subsequent to the marriage she also passed to him, by a bill of sale, the chief part of her personal property. The complaint further alleges that Anne M. Hunt was an aged woman, of about seventy years, in poor health and of unsound mind, and was very rich; that the defendant Winters was a young lawyer, about thirtyfive years old, and that “the said Byram L. Winters, before and at the time of his said marriage with the said Anne Maria Hunt, and before and at the time of the execution of the said will and the said deed and the said contract or bill of sale of the said personal property of his wife, knew of her enfeebled physical and mental condition, and that she was susceptible or liable to be easily influenced and deceived, and knowing the large amount of property owned by her, and contriving and intending, by taking advantage of her weakened physical infirmities and credulity, to get from her all of her property, induced or persuaded her to marry him, and then, as her counselor and legal adviser, by fraud and undue influence, and knowing her to be of unsound mind,” procured from her all her property by three separate instruments, the will, the deed and the bill of sale obtained at different times, and which, in the prayer for relief, the plaintiff separately asks shall be set aside and held to be void.

To the circumstance of asking for separate relief as to each of these instruments may be attributed the error into which the learned judge at Special Term fell in construing the complaint as alleging three causes of action, when, in fact, there was but one alleged, namely, that by fraud and undue influence the defendant had

FIRST DEPARTMENT, March TERM, 1899.

[Vol. 38.

obtained all the property. Because the pleader stated that, in carrying out this alleged fraudulent scheme, the defendant had his wife execute three separate papers, there were not necessarily included in the complaint three causes of action. The gravamen of the action is fraud, and the means resorted to for its accomplishment are but enumerations of the instances and results of the fraud.

The precise question here involved was presented to this court in Thomas v. Thomas (9 App. Div. 487), where a demurrer was interposed to a complaint in an action brought to set aside a deed, and a bill of sale executed in furtherance of an alleged design to obtain property by fraud and undue influence, and it was therein held that such a complaint set forth but a single cause of action. (See, also, Zoccolo v. Stern, 25 Misc. Rep. 246.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars

costs.

VAN BRUNT, P. J., Barrett, RUMSEY and PATTERSON, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

John C. LANGE, Respondent, v. HENRY HIrsch and Others,

Appellants.

Amended complaint when a defendant will be required to accept it and to move to

strike out such portions thereof as do not conform to the order authorizing its service.

Where an amended complaint, the service of which was authorized by the court,

has been returned as not complying with the order permitting it, and a new amended complaint is served (service of which is admitted on the original) which, together with the costs awarded by the order of the Special Term, is retained, pending certain negotiations in another matter, for three days after its service, at the end of which time, the negotiations having failed, it is returned, upon the ground that it does not conform to the order, the particulars in which it does not so conform not being pointed out, the defendant should be required to accept the complaint; his remedy under such circumstances being to retain the pleading, and thereafter move to strike out such portions thereof as do not conform to the terms of the order granting the plaintiff leave to serve it.

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

APPEAL by the defendants, Henry Hirsch and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of August, 1898, requiring the defendants to accept service of the plaintiff's amended complaint.

Frederick Wiener, for the appellants.

Campbell E. Locke, for the respondent. O'BRIEN, J.:

The plaintiff, having been permitted to apply at Special Terin for leave to amend his complaint and to serve it, was granted such leave with certain restrictions. The plaintiff then paid to the defendants costs awarded by the order of the Special Term, and served a copy of an amended complaint. This was returned as not in compliance with the order permitting it. A new annended complaint was served, and service was admitted on the original. The amended complaint was retained for three days thereafter and then returned as not conforming to the order, and motion was made by the plaintiff to compel the defendants to accept the pleading.

The extent to which the complaint could be amended was strictly limited by the order of the Special Term, and it is undisputed that, as first served, it did not conform thereto. The pleading having been served after the time to make such service had expired, had it on that ground been returned promptly it would have necessitated a motion to open default. Instead, however, of so returning it, the defendants retained the pleading for three days and then returned it with the objection that it did not conform to the order of the Special Term, but without pointing out the particulars in which it did not so conform.

Upon receipt of the copy service was admitted on the original; and, assuming that the amended complaint does not conform to the order, the question remains whether the practice followed by the defendants was correct. It appears that, pending negotiations in another matter, the amended complaint was retained for three days, and only after these negotiations had fallen through was the determination reached to return it. Having retained the costs and

APP. Div.-Vol. XXXVIII. 23

FIRST DEPARTMENT, MARCH TERM, 1899.

(Vol. 38.

thereafter having received the pleading and retained it for that length of time, the defendants were not at liberty to return it. Under the circumstances the proper practice was to retain the pleading and thereafter move to strike out such portions thereof as did not conform to the terms of the order of the Special Term granting leave to serve it. (Fredericks v. Taylor, 52 N. Y. 596.)

The order must be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., PATTERSON, INGRAHAM and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

38 178 38 636 38 178 160a 663

Louis LOWENSTEIN and Others, as Executors, etc., of Isaias MEYER,
Respondents, v. HERMAN

HERMAN SCHIFFER and ALFRED SCHIFFER, Appellants.

Partnership - construction of a clause authorizing surviving partners to purchase

the asscts.

In an action brought by the executors of a deceased partner to recover the dece

dent's interest in the partnership assets, an accounting was asked for to determine the amount due when the partnership was terminated, and the profits

subsequently realized by the defendants from moneys unpaid since that time. The answer set up the following partnership agrecment: “If any of the parties

hereto shall die before the end of the term of copartnership hereby created, or of any renewal term thereof, and the representatives of such deceased partner should, at the end of such term, elect not to further continue the copartnership business with the surviving partners, then in that event the surviving partners shall have the right which is hereby granted them to purchase all the right, title and interest of the deceased partner in the partnership assets and good will of such business at a valuation shown by the books of account of the partnership, making a deduction of twenty-five per cent upon the valuation of the machinery as shown upon said books of account,” and that the defendants had

elected to purchase pursuant thereto. Held, that the words “at a valuation shown by the books of account of the part.

nership ” indicated that an estimated value, as between the partners, shown upon the books, and not the market value of the assets, was to govern in determining the price to be paid by the partners electing to purchase thereunder; and that the only reasonable construction of the agreement was that the

App. Div.] FIRST DEPARTMENT, MARCH TERM, 1899.

books, as finally written in the ordinary course of business, with all entries in them, following the method pursued during the lifetime of the decedent and down to the termination of the partnership (the inventory being made up in

the same manner) should determine the question; That if the executors of the decedent were not bound by this method of deter

mining the amount to be paid under the agreement, the surviving partners would not be bound to purchase, and the affairs of the partnership should be liquidated in the usual course.

APPEAL by the defendants, Herman Schiffer and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 9th day of May, 1898, upon the report of a referee, and also from an order made at the New York Special Term and entered in said clerk's office on the 11th day of April, 1898, granting the plaintiffs an extra allowance of $2,000.

The action was brought by the executors of the will of Isaias Meyer to ascertain the amount due from the surviving partners, Schiffers, to the beneficiaries of Isaias Meyer in payment of their interest in the Pelgram & Meyer partnership and the mode of its payment. The complaint sets up the articles of a partnership formed for the manufacture of silk goods, entered into between Isaias Meyer and the defendants on May 1, 1888, admits certain payments made amounting to $143,750, and asks for an accounting as to the sum due the beneficiaries on May 31, 1893, when the partnership was terminated, and as to the amount due for profits realized by the defendants from moneys unpaid since that time.

The answer admits partnership, the payments made, and alleges that by the partnership agreement $609,000 is the valuation of the interests of the beneficiaries as shown by the books of the partnership, which sum the defendants have been ready and willing to pay. The answer further alleges that there was a subsequent agreement, by the terms of which the defendants were to pay in settlement of all clainis of the estate of Meyer in the partnership the sum of $585,000. As we hold by our decision in Schiffer v. Lauterbach (post, p. 636) that such an agreement for a settlement was not established, we are relieved from further considering it and are remitted for an adjustment of the rights of the parties to the original partnership agreement.

With reference thereto it appears that Isaias Meyer died August

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