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at the time of such dissolution, should be carried on, and to the exclusive
use of said firm name and of its trade marks, and to the good will of the
business, and that such surviving partner should not be entitled to receive
or be credited with anything therefor where such surviving partner has,
in fact, after the death of his copartner, conducted the business for a short
time under an agreement with the latter's executors, and has then bought
all of the stock of the firm, and has continued the business under the old
name, with the acquiescence of the executors and the son of the deceased
partner the latter remaining in the employment of such surviving partner
for a period of four years, at the end of which time the action was brought.
Quare, as to the effect in such a case of the Partnership Law (Chap. 420
of the Laws of 1897). DE GRAUW v. SCHMID.....
Partnership accounting. the right thereto is not lost because all the
books of account cannot be produced.] The right of a partner to an accounting
of the partnership transactions is not lost, because the partner whose duty
it was to keep the firm books failed to keep books covering the whole period
of the partnership, or because such books are not obtainable upon the trial;
in such a case the existing books may be used, and the proof derived from
them may be supplemented by such other competent evidence as the parties
can offer. VAN NAME v. VAN NAME.
4. Consent to an unequal division of profits not presumed.] In view
of the fact that, in the absence of an express agreement as to the shares of
the respective partners, the law implies that they are equally interested in
the partnership property and profits, it cannot be presumed that, because
the partners continued to do business for many years without having an
accounting, they intended that, when the business should be wound up, no
account should be taken of the fact as to whether or not one partner had
received more than his share of the earnings. Id.
5. Admissibility of a schedule prepared by an expert accountant from the
books.] Upon the trial of an action for an accounting, a schedule, prepared
by an expert accountant, containing abstracts from the cash books of the
copartnership which have been put in evidence, is admissible, where it is
verified by the person who made it. Id.
6. Prospective partner — not liable to one adrancing money to the enter-
prise.] One who, upon the repayment of certain money, advanced by him
to the lessees of a music hall, secured by a mortgage of the lease and fix-
tures of the music hall, is to become a part owner in the business of the hall,
does not, prior to such repayment, occupy the position of a partner in the
business and become liable for advances made to the enterprise by a third
party under an agreement which contemplated the payment of the mortgage
debt by the latter, but which in that respect he fails to carry out; nor can
such mortgagee be prevented from enforcing his mortgage.
MCLEOD . MINER....
Guaranty of an indebtedness for goods to be sold — when given to a firm
it does not survive its dissolution -officers of the corporation which gave the
guaranty cannot extend it by parol — estoppel.
See FRIEDLANDER . N. Y. PLATE GLASS INS. Co.....
Costs- - an attorney receiving them from a partner who is afterwards
obliged to pay them to his client will not be ordered to repay them on a summary
See TAYLOR . LONG ISLAND R. R. Co..
PARTY — Action to foreclose a mechanic's lien and to set aside as fraudulent
a conveyance of the premises — an intermediate grantee is not a necessary party.]
1. The complaint in an action, whose primary object was the foreclosure of
a mechanic's lien, alleged that after the plaintiff had performed work upon
premises belonging to the defendant, Thomas B. King, the latter and his
wife, with the fraudulent intent to embarrass, hinder and delay the plaintiff,
conveyed the premises to one Bailey, and that Bailey, on the same day, recon-
veyed them to King's wife; that such conveyances were fraudulent and void
as against the plaintiff, and constituted no bar or defense to her lien; the com-
plaint asked that the plaintiff be adjudged to have a valid lien upon the prem-
ises, and that the same be sold, and that, if it should be adjudged that the
plaintiff had no lien, she have judgment against the defendants personally.
Held, that as Bailey had not, and did not claim to have, any interest in the
premises or in a personal judgment against either of the defendants, he was
not a necessary party to the action.
The rule that the debtor's presence as a defendant is superfluous in suits
brought against his fraudulent alienees to annul specific covinous convey-
is applicable to the case of one who has been only an intermediary and
has no present interest in the property. BIERSCHENK 7. KING..
Irregularity in continuing an action, under a fictitious name, with
knowledge of a defendant's true name - how taken advantage of] Where a
commitment, regular on its face, has been issued in an action pursuant to an
order of the court and has been served upon the defendant, who has been
proceeded against under a fictitious name, and there was no evidence before
the court, when making the order for the commitment, that the plaintiff
knew the real name of the defendant, the latter cannot properly be dis-
charged from arrest under a writ of habeas corpus.
The question whether the plaintiff had knowledge of the defendant's true
name should not be determined on affidavits presented on the return to a
writ of habeas corpus, but upon a motion made to set aside the proceedings
and commitment because of irregularity in continuing the action under a fic-
titious name with knowledge of the defendant's true name, in violation of the
requirements of section 451 of the Code of Civil Procedure.
PEOPLE EX REL. MAIBACH v. DUNN.
3. Defect of parties in a creditor's suit the death of the judgment debtor
does not prevent the hearing of a demurrer alleging it.] Where, in a creditor's
suit, demurrers are interposed on the ground that there is a defect of parties,
in that the immediate grantee of the judgment debtor-
by whom the prop-
erty in question was conveyed to the judgment debtor's wife (since deceased),
whose two children and the judgment debtor are made parties defendant -
was a proper and necessary party to the action, the case should not be stricken
from the calendar because of the death of the judgment debtor, where the
demurrers are separate, the issues raised between the demurring children
of the deceased wife and the plaintiff being such as could be disposed of irre-
spective of the presence or absence in the action of the judgment debtor.
FIRST NATIONAL BANK . WRIGHT..
Eminent domain — damages to an abutting owner from an elevated rail-
road — when a devisee and residuary legatee of such owner is not entitled to dam-
ages accruing before the latter's death.
See GUCKER . MANHATTAN ELEVATED R. Co......
Trust fund its use in the business of a corporation by its secretary with
knowledge-personal liability of the secretary—when the beneficiaries may sue
to enforce such liability.
See ANDERSON 7. DALEY..
Promissory note-evidence of a right to enforce payment thereof by an
indorsee - a defense that the plaintiff is not the real party in interest must be
Action by one of several heirs at law of deceased grantors to set aside a
deed executed by them to their father during minority — non-joinder of the other
heirs at law.
See O'ROURKE v. HALL.....
See FOURTH NAT. BANK . MAHON
Action in forma pauperis — an agreement by the plaintiff to pay his
attorney is fatal to the right to continue it.
See CAHILL v. MANHATTAN R. Co..
Examination of, before trial.
PAYMENT - Trust fund - its use in the business of a corporation by its
secretary with knowledge — credits of payments on the earlier items.
See ANDERSON T. DALEY
Scrivener's rule - to what case it is not applicable.
See CENTRAL TRUST Co. v. FOLSOM
Subscription-effect of the payment of a part of the amount subscribed.
See HULL v. PEARSON..
PERFORMANCE- Of contracts.
PENALTY - Power to ordain “fixed penalties' it requires that a definite
sum, not a sum less than one nor more than another sum, be prescribed.
See MUNICIPAL CORPORATION.
PERJURY When a deposition states facts from which it may be inferred
that the false testimony was willfully and knowingly given—false imprisonment.
See KRAUSKOPF v. TALLMAN.
Confession of judgment -
- a misstatement as to the amount due constitutes
See MATHER . MATHER...
PERSON - Irregularity in continuing an action, under a fictitious name
with knowledge of a defendant's true name—
how taken advantage of.
See PEOPLE EX REL. MAIBACH . DUNN...
Action on a judgment rendered in another State-proof as to identity
See RICE r. COUTANT..
PERSONAL PROPERTY- Conversion — what possession is sufficient to su8-
tain an action for, by a husband against his wife.] 1. Absolute, unqualified
ownership is not necessary in order to authorize a person entitled to the
possession of property to sue for its conversion, but there must have been
possession of the property by the plaintiff or there must be an existing right
to take immediate actual possession.
Proof that a wife who, before her marriage, had been put into the posses-
sion of property purchased by her husband and placed in a store which he
had rented in his own name, while in charge of the business, induced her
husband to go to a foreign State to get some money, agreeing later to repay
him the money which he had put into the business, which she failed to
do, and that the husband on his return to New York found that she had
changed the lock and ordered him to be ejected should he enter the store,
and that when he demanded the goods or the money advanced, both were
refused by her, establishes an assertion of ownership by the wife which in
law amounts to a conversion, the husband having the right to take immediate
actual possession of the property, and the question whether he was in such
actual possession or not, is not material. SIMON . SIMON....
2. —— What is not a conversion of book accounts.] The seizure of books of
account and the service of notice upon the debtors of a husband, who has
assigned his claims against them to his wife, by a sheriff acting under a war-
rant of attachment against the husband, does not amount to a conversion of
the accounts; in any event, in an action brought by the owner of the accounts
for conversion, the sheriff is only responsible for the amount actually collected
by him upon such accounts. VOGEDES. BEAKES..
Contract to accept a draft of a third person drawn against merchandise
sold — what letter is an approval of the acceptance- - when the acceptors are not
mere quarantors—they are not bound to inquire as to the quality of the mer-
chandise drawn against -- when liability under the contract arises laches in the
sale of the merchandise.
See BENECKE v. HAEBLER.
Bill of sale of goods to be shipped — it creates a contract at once and not
one contingent upon the arrival of the goods — damages for a failure to deliver
See ABE STEIN Co. e. ROBERTSON.
The refusal of a bank to pay a check given by an agent for moneys col-
lected for his principal — it does not establish a conversion.
See NATIONAL LIFE ASSOCIATION . THOMPSON,
APP. DIV.- VOL. XXXVIII.
Chattel mortgage-right of a second mortgagee to take possession of the
mortgaged chattel as against a first mortgagee.
See GARRISON v. QUICK....
PLACE OF TRIAL:
Contract for the sale of several chattels -
See SALOMON . CORBETT..
PERSONAL TRANSACTION- With a deceased or insane person.
·when entire — recovery for its
PLEADING — Admission in an answer that one installment of the pur-
chase price of goods sold was due on the day the action was brought it does
not entitle the plaintiff to a judgment on the pleadings—when the right of action
accrues.] 1. An allegation contained in the answer interposed in an action
commenced January 6, 1896, to recover for goods sold and delivered, which
denies that the term of credit given on such sale had expired at the time of
the commencement of the action, and avers that the purchase price was to
be paid in weekly installments, "the first so to fall due January 6th,
1896, such first payment to amount to $243.25; that such installment was
the only one due at the time of the commencement of this action, and that
the total balance was to become due and payable on dates subsequent to
the commencement of this action," does not entitle the plaintiff to judg
ment upon the pleadings for $243.25, as the admission that the first install-
ment of $243.25 became due January 6, 1896, does not involve the conclusion
that the plaintiff was entitled to begin suit for such installment on that day,
as the law gave to the defendant the whole of January sixth within
which to make the payment, aud no right of action accrued to the plain-
tiff until the beginning of the day following. STURZ v. FISHER...........
2. Allegations creating an implication that a note payable to the
maker's order and not indorsed by the maker was “negotiated” by her under 1 R.
S. 761, 5.] To make a note, payable to the order of the maker and not
indorsed, valid within the provision of 1 Revised Statutes, 761, section 5, to
the effect that a note made payable to the order of the maker thereof or
to the order of a fictitious person, shall, if negotiated by the maker, have
the same effect and be of the same validity as against the maker and all
persons having knowledge of the facts as if payable to bearer, it is neces-
sary to allege that the note was negotiated by the maker.
An allegation in a complaint upon a promissory note, that the note hav-
ing been made by one defendant, payable to her own order, was thereafter,
and before the maturity thereof, duly indorsed by the other defendant, and
that, as thus indorsed, it was delivered to a bank for value, necessarily
implies that the note was delivered by the maker. ODELL v. CLYDE..
3. Amended complaint — when a defendant will be required to accept
it and to more 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 com-
plaint; 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.
Examination of a defendant's officers — a plaintiff required to give
a bill of particulars of matter contained in the defendant's books.] Where, in
an action based upon libel, an order for a bill of particulars requires the
plaintiff to give to the defendant, a commercial agency, information con-
cerning the names of subscribers to the defendant's reports, to whom the
plaintiff claims that employees of the defendant have sent the alleged libelous
articles, which information the defendant's books alone contain, the plaintiff
is entitled to an order requiring the defendant's officers to submit to an
examination, where it does not appear that such examination will neces-
sarily involve the giving of any information which will charge such officers
with a crime. CAMPBELL v. BROCK'S COMMERCIAL AGENCY.......
Amended complaint when not stricken out as being served for
delay only-effect of a delay in answering.] An amended complaint contain-
ing additional allegations pertinent and essential to certain features of the
cause of action set out in the original complaint, should not be stricken out
on the ground that it was served merely for the purpose of delay and con-
tained no new allegations pertinent to the plaintiff's cause of action, par-
ticularly where the defendant has taken nearly five months within which
to serve its answer. PRITCHARD V. NEDERLAND LIFE INS. Co. (No. 2).... 111
6. Motion for judgment upon an order striking out an answer as frivo-
lous when it may be made.] A motion for judgment upon an order strik-
ing out an answer as frivolous is properly made, although the time in
which to serve an amended answer has not expired; and where the defend-
ant made no application to amend his answer upon the hearing of the
motion, he cannot upon appeal insist upon his right to do so.
LEE . JACOB...
Bill of particulars — not granted on the affidavit of the plaintiff's
attorney.] An order requiring the defendant to serve a bill of particulars
should not be granted upon an affidavit of the plaintiff's attorney stating that
"such alleged credits are not within the special knowledge of the plaintiff."
STEVENS 7. SMITH....
Amendment of a complaint — the order must direct its service on a
defendant who is in default.] An order directing the amendment of a com-
plaint without directing its service upon the defendant, and giving him an
opportunity to answer it, although he may be in default in not answering
the original complaint, is erroneous. PALMER . SALISBURY.....
9. Scope of an admission in a pleading.] The failure of a defendant to
deny by his answer a statement made in a complaint is an admission only
"for the purposes of the action" in which the answer is served, and is not
an admission of the truth of the statement for the purposes of another action.
BANK OF THE METROPOLIS . FABER..
Action on a judgment rendered in another State- - want of jurisdiction
must be pleaded — effect of a general denial — a motion made by a defendant
upon the trial of an action for leave to amend his answer is addressed to the dis-
cretion of the court- it is properly denied where it appears that the defendant
relied upon a mere quibble.
See RICE . COUTANT.
Plea in abatement -action brought against a corporation by its president
for an accounting and for the amount found to be due him — when not a bar to
a subsequent action by the corporation for an accounting by the president for his
acts-plea of the pendency of an action at law in an equity suit.
See CONSOLIDATED FRUIT JAR Co. v. WISNER..
Landlord and tenant — breach of a landlord's covenant to keep the roof in
repair — rental damages, not damages to goods, are recoverable · -amendment of
an answer, setting up injury to goods, to one making a claim for loss of rental
See REINER v. JONES,
Marriage fraudulently contrived to obtain the property of an incompe-
tent — a complaint based on such fraud does not state more than one cause of
action because of the fact that three instruments are sought to be set aside.
See BLISS v. WINTERS..