author:
Yan Brunt, P. J.: O’Brien, J.:
     Barrett, J.:

text:
    JAMES TALCOTT, Respondent, v. THE WABASH RAILROAD COMPANY, Appellant.

      Common ca/n'iers — when not liable for merchandise of a third person checlced by a passenger as baggage — effect of an assignment of a “claim" — liability for an accident on a connecting road.

    The Wabash Western Railway Company, the Grand Trunk Railway Company and the West Shore Railway Company formed a through line from Detroit to Chicago and to New York. Coupon tickets were sold, the coupon of each company being for transportation over its own portion of the road.
    F. H. Cullom, who was employed by James Talcott as a commercial traveler, purchased, at the Chicago office of the Wabash Western Railway Company, such a ticket from Chicago to New York and return over the route described. He had four trunks, three belonging to Talcott and one to certain corporations; in the Talcott trunks were certain articles of baggage belonging to Cullom. He checked the trunks from Chicago to New York; told the baggage agent that the trunks contained samples of underwear : paid for the extra weight and received a card-board receipt therefor.
    While upon his journey, and upon the Grand Trunk Railway,"the baggage car, in which the trunks were, was destroyed. Cullom assigned to Talcott his claim for personal baggage, which was stated to be “all my right, title and interest in my claim against the Grand Trunk Railway Company,” and Talcott brought an action, as assignee of all the claims against the Wabash Railroad Company, which was the successor of the Wabash Western Railway Company.
    It did not appear that Cullom told the baggage agent that the samples belonged to others; nor did it appear that the baggage agent had power to allow, or ever had allowed, merchandise to be transported as such.
    On an appeal from a judgment recovered by the plaintiff:

      Held, that there could be no recovery for the samples.
    That they had been taken as Cullom’s baggage; had been checked as his baggage; represented to be such, and paid for as such, and hence no contractual relation was ever entered into by the Wabash Western Railway Company with Cullom, as the agent of Talcott, to transport Talcott’s merchandise.
    That there could be no recovery for Oullom’s personal baggage, because that claim, as against the plaintiff, still remained in Cullom, and was not transferred by an assignment of a claim against another corporation. (Vabt Brunt, P. J., dissenting.)
    Liability of a railroad company issuing a ticket with coupons covering the transportation of the purchaser over connecting lines, considered.
    Appeal by the defendant, the Wabash Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 9th day of June, 1892, upon a verdict for the plaintiff for $566.74, after a trial at the New York Circuit before the court and a jury.
    Also an appeal from an order denying the defendant’s motion for a new trial, entered in said clerk’s office on August 1Y, 1892.
    The action was brought by James Talcott, as assignee of certain claims for baggage and merchandise, and as owner of certain merchandise alleged to have been destroyed by the negligence of the "Wabash "Western Railway Company, of which the defendant is the successor.
    R. H. Cullom, who was a traveling agent for Talcott, and who was the person who checked the baggage, assigned to Talcott his claim for personal baggage, which assignment was stated to be of “ all my right, title and interest in my claim against the Grand Trunk Railway Company.” No other assignment from Cullom to Talcott appeared.

      G. F. Brownell, for the appellant.

      O. F. Matthewson, for the respondent.
   Yan Brunt, P. J.:

This action was brought by the plaintiff to recover, on his own behalf, and as assignee of various parties, damages for the loss in transit of alleged baggage, alleged to have been accepted by the Wabash Western Railway Company, the predecessor of the defendant, at Chicago, in April, 1889, for transportation to the city of New York.

The Wabash Western Railway Company, in combination with the Grand Trunk Railway Company and the West Shore Railway Company, formed a through line from Detroit to Chicago and New York, tickets being sold from Detroit or Chicago to New York; in which case there are coupon tickets, the coupon of each company being for its own portion of the road. On the 27th of April, 1892, one F. H. Cullom purchased at the Chicago office of the Wabash Western Railway Company, a coupon ticket from Chicago to New York and return over the route of the Wabash, Grand Trunk and West Shore Companies. The through fare of twenty-five dollars was paid by Cullom at the time of obtaining his ticket. Cullom was a commercial traveler in the employ of the plaintiff, and was returning to New York after a trip to the Pacific coast, California and Oregon. The ticket purchased by him entitled him to have 150 pounds of personal baggage carried with him upon any train without extra compensation; while for his baggage in excess of that weight, an excess baggage charge is made at a rate per 100 pounds, according to the distance. When Cullom reached Chicago he had four trunks which he had brought from the Pacific coast. Three were the property of the plaintiff, and the fourth belonged to the American Hosiery Company, and The New Britain Company, and he was bringing them for these parties to deliver to them when he got to New York. In the three trunks belonging to the plaintiff, Cullom had some of his personal effects. Soon after purchasing his tickets, Cullom took these trunks to the depot, and had them checked from Chicago to New York as his baggage. When he arrived at the depot he'went to the baggage-room, and had a conversation with a man marked “ Baggage Agent.” He presented his ticket, and told where he wanted the baggage checked to. After weighing them, the baggageman said: “ They weigh light, don’t they ? ” and he told him they were samples of underwear, and the baggageman made some reply which Cullom did not hear. He then figured up the excess of baggage, and told Cullom that it amounted to sixteen dollars, which he paid. Cullom further testified that he did not tell the baggageman that the trunk contained samples which were not his own, or he was not using in his own business; that he merely told him they were samples of underwear; that he did not tell him he was a commercial traveler; that he knew it was a passenger depot, and not a freight dejiot; that he took the trunks to carry with him, as baggage, on the train, and received a card-board receipt or excess check dated on that day, showing the payment of sixteen dollars for the transportation of the baggage in question, from Chicago. On April twenty-eighth, an accident occurred to the train in which Cullom had taken passage, by which the baggage car was destroyed while on the Grand Trunk Railway. This action was brought to recover the value of the baggage and merchandise contained in the four trunks, the causes of action having been assigned to the plaintiff. Upon the trial the court directed a verdict in favor of the plaintiff for the samples belonging to the plaintiff, and for the personal baggage of Mr. Cullom.

Prior to such direction the defendant’s counsel asked the court to go to the jury upon the question whether there was a special contract made with the defendant, apart from the contract made upon the purchase of the ticket; and, also, upon the question whether the defendant agreed by the contract, upon the sale of the ticket, to carry the baggage to New York, and deliver it in New York; and, also, whether the property shown to have been destroyed was not destroyed in the hands of the Grand Trunk Railroad upon its line of route. These requests being denied, an exception was duly taken; and from the judgment entered upon said verdict, and from the order denying a motion for new trial, this appeal is taken.

We think, as'far as the personal baggage of Cullom is concerned, the plaintiff had a right to recover. Cullom purchased a ticket to be transported from Chicago to New York, with his personal baggage not to exceed 150 pounds in weight. This contract he made with the defendant’s predecessor; and he paid the price charged for the making of such a contract, and the furnishing of the transportation. We cannot see that the passenger, under the circumstances stated, has anything to do with the private arrangements which have been made between connecting lines. The original sale of the ticket makes the contract. The question of its being a coupon ticket is entirely immaterial, as that is undoubtedly a regulation between the connecting companies themselves, for the purpose of keeping track of the business done by each, and of the origin of the c.ontract of transportation. The connecting railroads did not participate in the making of the contract; nor did they, as far as Cullom was concerned, assume any obligation in respect to his carriage, or in respect to the transportation of his baggage. The price paid was for the whole distance between Chicago and New York; and it would seem necessarily to follow that the defendant’s predecessor, having made this contract to transport Cullom to New York, together with his baggage, he was not required to look to the agents of the defendant’s predecessor in case of their failure to do their whole duty in the performance of this contract. This seems to be the principle which was enunciated in the case of Burnells. New York Central Railroad Company (45 N. Y., 188); Cary v. Cleveland and Toledo Railroad, Company (29 Barb., 85); Burtis v. Buffalo and State Line Railroad Company (24 N. Y., 275); Condict v. Grand Trunk Railway Company (54 id., 505); Sloman v. Great Western Railway Company (67 id., 211).

The eases cited by the appellant in no way affect these authorities ; that of Isaacson v. New York Cental (94 N. Y., 278) being substantially an authority in favor of the views above expressed. In that case the plaintiff purchased tickets from the defendant from Niagara Falls to New York and return. lie also held return tickets from Niagara Falls to New Orleans by the Mobile route, purchased at New Orleans; and there was no evidence that the defendant company was'interested in that route. The plaintiff took the tickets above-stated, presented them, with his baggage, to the defendant’s baggage-master at New York, and requested him to check the baggage from New York to New Orleans. The baggage-master asked to see the tickets; examined them and thereupon gave the plaintiff checks to New Orleans. The plaintiff put them in his pocket without examining them. On the same day the plaintiff and his family commenced his return journey to New Orleans. On his arrival it was ascertained that the checks given at New York were given for what is called the Great Jackson route from Niagara Falls to New Orleans. It subsequently transpired that the plaintiff’s baggage was sent over the route indicated by the checks, and was substantially destroyed by an accident at Ingaloo, Miss. The delivery of the baggage by the defendant at Niagara Falls to the agents of the Jackson route was a direct violation of the plaintiff’s instructions and of the undertaking of the baggage-master on receiving the baggage.

The court held that the request to check over the Mobile route, assented to by him, constituted an agreement between the company and the plaintiff, unless the plaintiff’s omission to examine the checks was contributory negligence; and the court reversed a non-suit. The court say that there arises on the sale of a ticket a contract to carry the passenger and his baggage between the points indicated, and that the passenger has a right to assume that the baggage-master possesses the requisite authority to make all ordinary and usual arrangements with passengers in respect to the transportation of their baggage. It would, therefore, seem to follow that, by the sale of the ticket between Chicago and New York, and the checking of the baggage between these two points, the defendant’s predecessor became liable to carry out that contract, so far as the personal baggage of Cullom was concerned.

But, we think, a different question arises with respect to the merchandise contained in these trunks. It is claimed that there was a special contract entered into for the carrying of this merchandise, and that the baggage-master was informed that it was merchandise ; and that, therefore, a recovery could be had.

We think there are two answers to this claim. The first is that there is no attempt to show that the baggage-master was informed that the property belonged to anybody else than the passenger, and the sole undertaking of the railroad company was to transport Cullom the passenger and his baggage and not the merchandise of other people. And furthermore there was no undertaking whatever to carry merchandise as such. It is true Cullom swears he stated to the baggage-master that these trunks contained samples of underwear. But it does not appear that the baggage-master had any authority whatever to make any contract of affreightment, or to allow merchandise to be carried as freight. And it does not anpear that he ever did exercise any such authority.

In the case of Sloman v. Erie Railway Company (52 N. Y., 429), the transportation company demanded and received from the passenger compensation as freight for the transportation of packages containing merchandise, and a recovery was had expressly upon the ground that the transportation was paid for as merchandise and not as baggage, and there was no question raised in that case as to the authority of the agent of the transportation company. So in the case of Sloman v. Great Western Railway Company (67 N. Y., 211) it was held that where the company receives the trunks of a passenger with notice that they contain property other than personal baggage, and charges and receives extra compensation for their transportation, an agreement to carry the property as freight, may by the jury be inferred therefrom. But the authority of the baggage-master in that case to receive the trunks as freight was not raised, and upon the trial the court stated that the authority of the baggage-master seems to have been assumed, he being in the receipt given for the trunks as well as m the motion for the nonsuit designated as the agent of the defendant; the simple question submitted to the jury being upon the claim that there was no evidence as to whether the defendant’s agent was notified that the baggage was other than ordinary baggage. This case clearly shows that' if the company undertakes to carry other people’s merchandise as freight they are liable as any common carrier would be, and that is all; and that such facts must appear from which it can be reasonably inferred by the jury that this contract of affreightment was entered into with knowledge of all the facts. In the case at bar there is no claim whatever that any statement was made that any part of this merchandise was owned by anybody else but by the passenger Collum; and there is nothing from which it can be inferred that the company undertook to carry this merchandise as freight. On the contrary, it is taken as baggage; it is checked as baggage ; it is paid for as baggage, and it was represented to the company by Oullom that it was his baggage. Therefore, there was no contractual relation entered into by the predecessor of the defendant with Oullom as the agent of the plaintiff in respect to the merchandise belonging to him giving the most liberal construction to the testimony possible.

We think, therefore, that the court erred in directing a verdict, and that the complaint should have been dismissed in respect to the merchandise belonging to others than the passenger, and the question of notice as to any other merchandise which may have belonged to the passenger submitted to the jury.

The judgment and order should be reversed and new trial ordered, with costs to appellant to abide event.

O’Brien, J.:

I concur in result. As to the personal baggage of Oullom, assuming he had a claim therefor against defendant, he still retains it, and the plaintiff could-not recover against the Wabash Company by virtue of an assignment made by Cullom of his claim against the Grand Trunk Railroad; and as plaintiff bases his claim upon the assignment from Cullom of a claim against the Grand Trunk, I fail to see how that is available in a suit against the Wabash. But I do not assent to the view that the Wabash Road is liable, as matter of law, for such baggage, having in mind the relation of the defendant road to the other connecting lines as shown by the testimony, and the coupon ticket issued to Cullom, with the condition thereon, which specified that the relation of the Wabash was that of an agent to such roads, ■and limiting its liability for damages to such as occurred on its own route.

I think the appellant is right in his contention that the duty to provide for the safe carriage of the baggage is incident to, and is implied from the contract for the carriage of the passenger himself, without any specific agreement or separate compensation, and that where, as here, the contract between the parties is evidenced by the terms specified upon the ticket purchased by 'the passenger, the rights of the parties would be determined by such contract in the absence of some evidence showing that the passenger was prevented from seeing, or, in fact, did not read such conditions. Assuming that such conditions were brought home to the passenger, or that he became bound thereby, then what was said in Auerbach v. New York Central and Hudson River Railroad Company (89 N. Y., 281) would be applicable: “A separate contract was made for a continuous passage over each of the roads mentioned in the several coupons. ' Each company, through the agent selling the ticket, made a contract for a passage over its road, and each company assumed responsibility for the passenger only over its road. No company was'liable .for any accident or default upon any road but its own, This was so by the very terms of the agreement printed upon the ticket.”

As to the samples belonging to plaintiff, in addition to the reasons assigned by the presiding justice, I think it was, at least, a question for the jury whether the damage occurred on the Grand Trunk Road; and if the jury found it did, the further question remained whether such samples were not carried upon an express contract evidenced by the conditions specified on the ticket by which the Wabash limited its liability for damages on its own route, holding as to connecting lines, the relation of agent.

Barrett, J.:

I concur in the result. In my judgment the plaintiff should have been nonsuited as to both causes of action. As to Mr. Talcott’s own goods, I agree with the views expressed by the presiding justice. As to Cullom’s baggage, I agree with Mr, Justice O’Brien, that the claim still exists in Cullom, and was not transferred to the plaintiff by an assignment of a claim against another corporation. But I deem it unnecessary to pass upon the remaining question discussed by Mr. Justice O’Brien for the reason that the facts proved are insufficient to raise the question. There was no evidence that any coupon ticket was issued to Cullom by the defendant’s predecessor. Cullom asked for a through ticket and paid for it. Upon the trial the defendant’s counsel produced a coupon ticket and asked Cullom whether the ticket which he received was in that form. At first, Cullom said that the ticket he received was similar to that shown him, and that he thought his ticket was in that particular form. But subsequently he said he did not remember the form of his ticket, nor whether it was the same kind of ticket as that exhibited to him .by counsel; that, after the accident, he read his ticket, and that he did not think there was anything on it with regard to the Wabash Company acting as agent for other companies. Finally, he was asked this question and gave this answer: “ Q. This ticket which you had, was it of the form I). X. 325 ? Can you say now, after consideration, whether it was of this form of ticket, of which this is a copy % A. I cannot tell; I don’t know.”

The form of ticket so produced by defendant’s counsel upon the trial was not offered in evidence, but was merely marked for identification, and the limitation of liability claimed by the defendant was, therefore, unproved.

Thus the defendant’s general liability, resulting from the sale of a through ticket, was the true measure of responsibility flowing from the facts. That general liability was not limited by any special contract actually proved, and, consequently, the rule stated by the presiding justice properly governs.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM H. HOWES, Appellant, v. THOMAS F. GRADY, one of the Police Justices of the City and County of New York, Respondent.

      Criminal Procedure — right of a prosecutor to appear/' by counsel upon a preliminary; examination before a magistrate.

    Section 208 of the Code of Criminal Procedure, relative to a preliminary hearing before a magistrate, provides that “the magistrate may also exclude from the examination every person, except the clerk of the magistrate, the prosecutor and his counsel, the attorney-general, the district attorney of the county, the defendant and his counsel, and the officer having the defendant in custody.”
    William H. Howes, as agent for the Society for the Prevention of Crime, having; made a complaint before a police justice of the city and county of New York,. in which he charged a saloon keeper with a violation of the excise law, a preliminary hearing took place from which the police justice excluded the counsel of the society upon the ground that they did not represent the district attorney, and had no authority from him.
    Howes applied for a writ of mandamus requiring the police justice to permit the appearance of his counsel, but the motion was denied.
    On appeal from the order denying the motion:

      Held, that the ruling of the police justice was erroneous, the counsel of Howes being comprehended in the phrase, “ the prosecutor and his counsel.”
    That the words did not mean “ the district attorney or his representative,” as the district attorney was expressly mentioned in a subsequent part of the section.
    That there did not appear to be any law requiring the district attorney to attend a preliminary hearing, while his exclusive right to appear in a criminal proceeding and conduct it was confined to proceedings which took place subsequent to a preliminary hearing.
    Appeal by the relator, William H. Howes, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 13th day of July, 1892, denying a motion for a writ of mandamus requiring Thomas F. Grady, a police justice of the city and county of New York, to permit private counsel to appear for said Howes, an agent for the Society for the Prevention of Crime, of the City and County of New York,, in the prosecution of his complaint, in his individual capacity and apart from any connection with said society, before said justice, against one Warren Lewis for an alleged 'violation of the excise laws, and to permit and allow said private counsel to exercise the functions of the prosecuting attorney of the county of New York in said proceeding.

      F. Moss and 8, B. Brague, for the appellant.

      David Welch, for the respondent.
   O’Brien, J.:

The relator was an agent for the Society for the Prevention of Orime, and as such agent he made a complaint before the police justice, in which he charged a certain saloon keeper with a violation of the excise law, and upon the defendant’s request a preliminary hearing was had on which he was represented by counsel. The counsel of the society appeared for the complainant, but were forbidden by the justice to take any part in the proceedings upon the ground that, as they neither represented nor had authority from the district attorney, they could not act as counsel for the complainant.

It is true that the order recites that the relator, an agent of the society, was engaged in the prosecution of his complaint in his individual capacity and apart from any connection with the society. But this we do not regard as material; and if it were, we think it is clearly made to appear that, while the relator was the complainant, his action in making the complaint was as agent for the society, and that it was in the discharge of his duty as such agent that he was prosecuting the complaint. The question, however, presented is, whether private counsel can appear for a complainant upon a preliminary hearing before a police magistrate.

Section 203 of the Code of Criminal Procedure reads as follows: “ The magistrate may also exclude from the examination every person, except the clerk of the magistrate, the prosecutor and his counsel, the attorney-general, the district attorney of the county, the defendant and his counsel, and the officer having the defendant in custody.”

It is insisted, in support of the view taken by the learned judge below, that the words “ the prosecutor and his counsel ” mean the district attorney or the representative of the district attorney; and to enforce this view we are referred to the provisions of the Code of Criminal Procedure which provide that the actions must be prosecuted in the name of the people of the State, and to the Revised. Statutes which relate to the duties and powers of the district attorney. We think, however, that it would be doing violence to the language and to the manifest intention of the legislature to hold that by the words “ prosecutor and his counsel,” as used in section 203, was meant the district attorney, because in that same section provision is made for the appearance of the district attorney, but if this view is to prevail, why would it be necessary to have twice authorized the district attorney to appeal, by mentioning him by his title and again as counsel for the prosecution in this same section ?

The error into which we think the respondent has fallen, in referring to the provisions of the Code in respect to the prosecution of criminal actions and the duties of the district attorney, is, in not observing the distinction between the preliminary hearing before the magistrate and the proceedings in a criminal action subsequent thereto. It must be remembered that, upon this preliminary hearing, the magistrate determines simply whether there is probable cause for holding the defendants for trial. The substantial work of prosecution does not begin until after the prisoner has been held for trial at the close of the examination, when the indictment is found, or the case comes up at the Special Sessions, on the prisoner’s election. Having- this distinction in view, it will be seen that, outside of section 203 already referred to, the duty of the district attorney, as defined in the Revised Statutes (1 R. S., 383, § 89; Birdseye’s R. S., 877, § 1), is £' to attend the courts of Oyer and Terminer and jail delivery and General Sessions, * * * and to conduct all prosecutions for crimes and offenses cognizable in such courts.” It is-true that, by another section of the Revised Statutes (2 R. S., [8th ed.], p. 1068; Laws of 1872, chap, 587, § 2; Birdseye’s R. S., 878, § 8), it is made lawful for assistants of the district attorney to attend all the criminal courts which may be held, and to assist in conducting all prosecutions for crimes and offenses cognizable therein. This section, however, so far as it may relate to the right of the district attorney or his assistants to appear upon preliminary hearings before magistrates, is entirely in consonance with section 203 of the Code, which gives such right to the district attorney. But no law, so far as we have been able to find, confers upon the district attorney the exclusive right to attend on the preliminary hearings before police magistrates, such exclusive right seemingly being confined to the proceedings in criminal actions subsequent to the preliminary hearings. Such criminal actions, upon and after indictment, must be prosecuted in the name of the People of the State by the district attorney, but the original warrant may be issued without this official’s signature as-district attorney.

We find no law which imposes on the district attorney any duty to attend on preliminary hearings before the magistrate. That he has a right to attend and conduct such preliminary hearings seems reasonably clear, but this is entirely consistent with the right given to complainants, where the district attorney does-not appear, to be represented by counsel. On such hearings the defendant usually seeks the advice, and has the aid of astute counsel, and we fail to see why, in the absence of the district attorney, the same privilege should not be accorded to the complainant, unless it is prohibited by law.

Having reached the conclusion, however, that section 203 of the Code, by fair implication from its terms, not only does not forbid,but grants the right to the complainant to be represented by counsel, we think that the police justice was in error in refusing to permit counsel to appeal’, and that, upon such facts being shown, the relator was entitled to a mcmdamus directing the police justice to accord to him a right conferred by law.

We are of opinion that the order appealed from should be reversed, but in view of the fact that the relator is the agent of a society, and the defendant a police judge who took the position in good faith, in denying the right of the relator to counsel, it should be without costs.

Yan Brunt, P. J., and Barrett, J., concurred.

Order reversed, without costs.


author: Barrett, J.:

text:
    HENRY W. GRAY, Respondent, v. GEORGE T. GREEN, Appellant.

      Partnership — discontinuance of general business — an accounting postponed by mutual consent — when the statute of limitations begins to run.

    The complaint, in an action brought in 1884 by one partner to dissolve the copartnership and for an accounting, alleged the formation, on January 1, 1870, of a copartnership between the plaintiff Henry TV. Gray and the defendant George T. Green, as stock-brokers, etc., under the name of H. TV. Gray & Co.; that, on July 1, 1884, certain partnership transactions were unsettled, and could not have been settled before that date; that the defendant was indebted to the partnership in an amount which could not be ascertained without an accounting.
    Tt demanded, as relief, that the partnership be dissolved, an account be taken, and that the defendant be ordered to pay the amount found due.
    Tt appeared, upon the trial of the action, that after an alleged dissolution, which the defendant claimed had taken place October 21, 1872, the partnership had been continued for the purposes of carrying securities for customers until August, 1873; that both partners had acted as liquidators of the affairs of the firm; that the defendant, in 1875, made affidavits in support of a claim by the firm against the United States, and that, in July, 1884, he, authorized a foreclosure action upon a mortgage owned by the firm; that prior to this action, brought in August, 1884, neither party had objected to the other’s action as liquidator, or had requested a settlement, and that the assets of the firm could not have been sooner collected.
    The principal defense interposed was the six year and ten year statutes of limitations.
    Upon an appeal from a judgment in favor of the plaintiff:

      Held, that the defense was untenable.
    That, whether or not, the statute of limitations was a defense to such an action for an accounting between partners must depend upon the particular facts of each case.
    That the effect of the evidence and of the pleadings was to establish the fact that a final accounting had, by mutual consent, been postponed until the defendant could receive credit for his share of all collections, and until his net indebtedness could be ascertained.
    That the cause of action for an accounting did not arise until July, 1884, the time when the partnership transactions could be wound up.
    Where parties are proceeding amicably to wind up a partnership business without judicial intervention, the firm continues to exist for the purpose of collecting, settling up and distributing its assets and performing its antecedent engagements.
    Appeal by the defendant George T. Green from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of May, 1892, upon a recovery by the plaintiff for $8,124.84 and costs, after a trial by the court at the New York Special Term.
    The action was brought in August, 1884, for an accounting between partners. The complaint alleged that the plaintiff and defendant formed a partnership on January 1,1870, under the name of H. W. Gray & Co.; that the plaintiff’s share of the profits was. four-fifths and that of the defendant one-fifth. It stated the value of the outstanding transactions, which were not settled until July 1, 1884, at $15,000. The defendant plead the six year and ten year statutes of limitations.

      Charles C. Suydam, for the appellant.

      J. E. Bur rill and George Zdbriskie, for the respondent.
   Barrett, J.:

I confess that when this case was before us on the last appeal (25 N. Y. St. Rep., .622), I had grave doubts upon the facts as they then appeared with regard to the question of the statute of limitations; and I concurred in the affirmance of the judgment, only because I felt bound by the opinion delivered upon the first appeal. (41 Hun, 524.) It was, therefore, with but little surprise that I observed the reversal of the judgment in the Court of Appeals-(125 N. Y., 203), and upon perusing the opinion of that court, I noted that the reversal was upon the very point which had seemed to me to be the difficult one in the plaintiff’s case as it was then presented.

I make these observations the more freely because, upon the record as it now comes up, my previous doubts are removed, and I feel satisfied that, upon the facts as found by the learned judge-upon the trial now under review, his conclusion that the statute had not run against the plaintiff’s claim is entirely correct.

The key-note of the case, as it was presented to us and to the Court of Appeals on the previous hearing, was that by the agreement, of dissolution the plaintiff was made the liquidating partner; that by this agreement he became the authorized agent of the partnership ^ that as such it was his duty to collect and realize its assets; that the claim against the defendant was an asset, and that, consequently, it became tbe plaintiff’s duty to tbe creditors as well as to himself to collect it. The cause of action to reduce this asset to possession was held to be independent of the right to an adjustment of partnership affairs, as between the partners themselves, even though an accounting to ascertain the precise amount of the asset, namely, the specific sum due to the partnership, might well be involved in the liquidator’s action.

The cause of action for a judicial dissolution and adjustment of partnership affairs, as between the partners themselves, and for a final accounting with an appropriate money judgment thereon, may indeed accrue upon dissolution, but whether it does or not, must necessarily depend upon the facts of each particular ease. The right of the liquidator, however, to proceed against one —.be he partner or ordinary debtor — who is liable to the firm accrues immediately upon dissolution. This latter liability of the defendant was treated as in the nature of an overdraft for which he was liable, without regard to the general right to an accounting. In fact, it was thought that the accounting could more properly be had after the restoration to the firm and to its depleted capital of the amount of this overdraft. This is clear from the language of the opinion':

“ Granting,” said Finch, J., that the defendant’s interest in profits could equitably reduce his overdraft, and that the amount of profits, and so, his interest in them, would be affected by the total of debts and the soundness of assets, and yet his overdraft remained due instanter to the partnership, which he was liable at once to pay, which he ought at once to pay; which the liquidating partner, as such, was entitled immediately to realize and receive.”

The fundamental error upon the trial then under review was the finding of fact with respect to the agreement of dissolution and the appointment thereby of plaintiff as sole liquidator. This error was the result of some loose and inaccurate expressions on the part of the plaintiff — when he was previously examined — to the effect that, by agreement with his partner, he was to liquidate the business of the firm. The finding which followed his testimony was not inconsistent with the frame-work of the complaint, and it was, therefore, fatal to a recovery. It is also true that the present finding of fact — that there was no agreement with regard to liquidation — is entirely consistent, as we shall presently see, with both the letter and the scope of the complaint. And such finding is the truth of the case.

This finding of fact — that there was no agreement by which either partner was to be sole liquidator to the exclusion of the other — is amply supported by the testimony. Indeed, the evidence on the subject was all one way. The plaintiff on the present trial testified to facts, that is, to what actually transpired, and not, as upon the previous trial, to mistaken conclusions or impressions. He testified that there was no agreement by which he was to have exclusive liquidation of the business; none that he was to liquidate to the defendant’s exclusion; none that the defendant was to liquidate to his exclusion; and that, as matter of fact, they both went on, each of them, liquidating the business.” And this was the literal truth, whatever the plaintiff may have inadvertently said upon any other occasion. It is borne out by the subsequent acts of the parties and by facts as to which there could be no dispute. Even the defendant claimed nothing more than a tacit understanding ” that the plaintiff was to be the liquidator; an understanding, however, which was directly opposed to his own acts. Eor we find him, too, liquidating — drawing money from the bank, paying debts therewith, signing checks II. W. Gray & Co., in liquidation ” as late as September, 1874, authorizing a foreclosure suit in July, 1884, and making affidavits in support of a claim against the government in May, 1873, and July, 1875. The defendant testified that the assets “ were liquidated to a certain extent ” by him in settlement of the affairs of II. W. Gray & Co.; ” and on being asked how these assets were liquidated, he readied, “ by sale of the securities.” He also testified that he drew a great many checks on the account of the firm on the Bank of New York “for the liquidation of the business of H. W. Gray & Co.” although he denies that he drew such checks as late as September, 1874.

It is claimed that all this occurred while the plaintiff was absent in Europe, and was necessitated by such absence, but it clearly appears that several of the specified acts were done while the plaintiff was here; and as to the others, the defendant acted freely, and without apparent regard to any contract limitation upon his right-

The finding of fact, therefore, to which we have referred, was in precise accord with the evidence on both sides, and it is conclusive of the main question. Eor if such trading be just as consistent with the averments of the complaint as was the opposite finding made on the previous trial, then, plainly, the cause of action is not that of a liquidator seeking to compel payment of a sum due to the firm, but an ordinary action between partners — partners who, without question or disagreement, have been severally liquidating the affairs of the firm, and who have completed such liquidation — for a final adjustment of accounts, as between themselves.

Let us analyze the complaint and see precisely what it contemplates. In the first place, it contains no averment that the plaintiff was to be the liquidator of the firm’s business. There is, in fact, no averment at all upon the subject of liquidation. Nor is there •even a distinct averment of dissolution, although that may be implied from the language used. In the first paragraph the partnership is set forth, and its terms are specified. This is admitted in the answer. In the second paragraph, it is averred that, prior to the commencement of the action, and on or about the 1st day of July, 1884, there remained, outstanding and unadjusted, certain copartnership transactions connected with the firm; that said transactions have never been settled or wound up, and could not be until •on or about the date last mentioned; .and that said transactions involve assets of the copartnership to the amount of $15,000, of which no account had been taken or had.

Here, it will be observed, a distinct issue is tendered as to the possibility of settling or winding up the copartnership transactions prior to the 1st day of July, 1884. How is this issue met? Ve have searched the defendant’s answer in vain, for a denial. He does not even deny the allegation that the copartnership transactions were outstanding and unadjusted on the 1st day of July, 1884. The answer on this head reads as follows :

“ VII. And further answering, this defendant denies that any of the copartnership transactions which belong to the said copartnership of H. W. Gray & Co. were outstanding and unadjusted on or about the 1st day of July, 1884, but he says that if there were any such transactions outstanding and unadjusted, they were and are the property of the plaintiff herein, and became his sole and separate property on or about the 21st day of October, 1872, when the said partnership was dissolved.”

This is really no denial at all. It is but a supplement to the allegation contained in the sixth paragraph of the answer, “ That upon the dissolution of the said firm, as aforesaid, in October, 1872, the whole of the assets thereof became and was the property of the said H. W. Gray, as representing the capital he had contributed to the said copartnership.”

The allegation of the complaint is that, on the 1st day of July, 1884, “there remained, outstanding and unadjusted, certain copartnership transactions connected with said firm.” The denial is that any of the copartnership transactions which belonged to the copartnership of U.W. Gray & Co. were outstanding and unadjusted at that time; in other words, they were outstanding and unadjusted, but they did not belong to the copartnership because they became the sole and separate property of the plaintiff when the partnership was dissolved. Thus there is no specific denial of what is alleged, but rather an evasion of the averment. Words are imported into the averment for the purpose of denying it, as thus modified. The effect is an admission of the fact averred, coupled with an affirmative allegation that whatever copartnership transactions remained unadjusted on the 1st day of July, 1884, belonged to the plaintiff, and not to H. W. Gray & Co.

But as to the averment that these copartnership transactions have never been settled or wound up, and could not be until on or about July 1, 1884, there is not even a qualified denial.

The only reference to this crucial averment which we find in the entire answer, is at the close of the eleventh paragraph thereof, in these words: “And he says that there were no accounts and transactions of the said firm outstanding after the said date (October 21, 1872), which would prevent such an accounting as the plaintiff demands in his complaint herein.”

This is simply an averment of a conclusion of law. It is not a denial, general or specific, of the averment of the complaint. Nor is it a statement of new matter constituting a defense. The effect of the pleading, therefore, is that it amounts to a plea of the statute of limitations as against the admitted averments of the complaint, namely, the averments that copartnership transactions, of which no account had ever been taken or had, remained outstanding and unadjusted on the 1st day of July, 1884, and could not have been settled or wound up prior to that date / in other words, that the statute ran against an accounting notwithstanding the impossibility of completing the ligxoidation prior to the specified date.

Thus the defendant meets the issue of fact tendered by the complaint, in substance, by the tender of an issue of law. And that issue necessarily amounts to this: That the statute ran from the date of dissolution, xonder any and all circiomstances, and xoithoxot regard to the special facts pleaded, admitted, proved and found.

This is an extreme view, to which no countenance is given by the Court of Appeals, and it is in direct opposition to the great weight of authority. (Gray v. Green, 125 N. Y., 205, opinion of Finch, J., see paragraph quoted by the learned judge at Special Term;* Riddle v. Whitehill, 135 U. S., 637; and see, also, cases cited in American and English Encyclopaedias of Law, vol. 17, p. 1283, note "3 ”; Wood on Limitations, § 210, p. 430; Lindley on Part., vol. 2, p. 964 [Ewell’s Am. ed.], and cases cited in the opinion delivered at Special Term.)

We now come to the third averment of the complaint. Here the plaintiff avers, in substance, that the defendant has received more money from the partnership funds and assets than belonged to him; that is, more than his proper share of such partnership funds and assets. The facts thus pleaded in the second and third paragraphs are followed in the fourth paragrali by an averment that “ no final adjustment of the business of said firm, or accounting between said parties as said partners, has been had.” This averment is not denied. Instead of a denial, we find an affirmative statement that “ the business and affairs of the said partnership were settled and adjusted at the time of the dissolution thereof by the transfer of all the assets thereof to the plaintiff herein, to wit, at or about the 21st day of October, 1872.” A statement, we may say, which was concededly inaccurate.

■ Here the defendant does not, as in the instance already discussed, import the affirmative statement into the plaintiff’s averment, and then deny the latter as modified. He completely ignores the latter averment and plants himself upon the alleged transfer as furnishing a sufficient'reason why the final adjustment has not been had.

The prayer for such final adjustment and accounting and for a. judicial dissolution follows. This complaint, because of the averments contained in the third paragraph, was treated upon the last appeal as sufficient to sustain the supposed liquidator’s cause of action. If the defendant had become possessed of and retained assets of the partnership in excess of his partnership interest, as a/uerred in this third paragraph, the liquidator had a right, and indeed it was his duty, to collect it immediately upon dissolution. But now that the theory of a special liquidator is eliminated from the case, this third averment becomes an aid merely -to the other averments of the complaint and amounts to nothing more than a general statement — that, upon the final adjustment and accounting prayed for, the balance will be found to be in the plaintiff’s favor. What have we, then, in the absence of any agreement on the subject of liquidation, but a cause of action for the final adjustment of the partnership affairs, as between the partners themselves, upon allegations (admitted, proved and found) that the very transactions which are to be embraced in such final adjustment remained outstanding until a late period, and could not have been settled or wound up at an earlier period ?

We think, therefore, that the cause of action stated in the complaint is in harmony with the findings of fact as now presented, and that certainly the statute did not run against such a cause of action at the moment of dissolution.

The learned judge has also found certain facts which negative the idea of any disagreement between the parties, at the time of the dissolution, or any differences respecting their rights. The fifth finding is as follows:

“ Fifth. Each of said parties in the settlement and adjustment of the affairs of said copartnership has acted faithfully, and without unnecessary or inexcusable delay; and no complaint has at any time been made by either party of any want of diligence on the part of the other in closing up said affairs, and neither has requested or notified the other to wind up or settle the affairs in any other manner, or in any shorter or other time than was employed in winding up and settling the same, and the assets of said firm could not have been collected or realized sooner than they have been.”

This indicates that the liquidation proceeded xieaceably and without question, and that there was a “ tacit understanding ” to postxione the final accounting, upon which the defendant’s liability should be ultimately stated and fixed, until he could be credited with the collections made in the due course of such liquidation. That, under these circumstances, the statute did not run at the date of - dissolution is abundantly established by the reasoning of the learned judge at Special Term, and we can add nothing to what he has said upon that subject. And this reasoning is sustained not only by what was said by Finch, J., in the Court of Appeals in this case, but also by the precise language used by Chief Justice Fuller, in the Supreme Court of the United States, in Riddle v. Whitehill (supra).

There are, however, one or two additional facts disclosed by the record which, we think, fortify this position. It appears that the partnership was continued for several purposes after what is styled dissolution. The general business of the firm was undoubtedly terminated, but its subsisting engagements called for and received continuous service. Thus the defendant tells us that when the business terminated the firm was carrying certain securities upon which it was necessary for them to borrow money, and they did so. “ Such loans,” he testified, were made in the months of October, November, and December, 1872, and January, February, March, April, May, June, and even in August, 1873.” If they had not made these loans from time to time it is apparent that they could not have carried the securities for their customers or for themselves if they, or either of them, were interested in the transactions; and the continuance of such transactions is consistent with the defendant’s testimony ¿hat he believed profits were made after the dissolution.. But these continuous transactions were not the only ones which, as matter of fact, called for the continuance of the firm. A single illustration will suffice on this head. One of the claims, the realization of which was necessarily postponed, was that against the government for the return of certain taxes, illegally imposed. The learned counsel for the appellant, in an elaborate note ” upon the 'sixth page of his points, contends that this claim was not a partnership asset at all, but that “ it was money which had been charged to the accounts of customers for whom it had been paid, and to whom, if collected, it rightfully belonged.”

The facts are that these customers were, in the main, the parties themselves, and, consequently, the collection was divisible under the partnership arrangement. It is true, however, that a part of the claim rightfully belonged to outside customers, as pointed out by the learned counsel. But wli'at does this establish except that, s& far as this part of the claim was concerned, the parties were still partners for the purpose of serving their customers and performing duties which they still assumed, and assumed quite properly ?

The learned judge at Special Term ■ has stated with clearness the rule, and has fortified the statement with abundant citation of authority, that where parties are proceeding amicably to wind up the business without judicial intervention, the firm continues to exist for the purpose of collecting, settling up and distributing its assets and performing its antecedent engagements. It will be perceived that, in the present case, this general rule is supplemented by the fact that some of these antecedent engagements were continuous, and that the partnership duties to customers (apart from the ordinary duties of liquidation) lasted certainly until the 25th of August, 1875, when the claim against the government was realized.

It is suggested that an action for an accounting and settlement might have been brought upon the dissolution of the firm, and that a receiver might have wound up the business and sold such claims-as tbe defendant admits could not have been realized in due course until long afterwards. Without considering the question discussed by the learned judge at Special Term, as' to whether the claim against the United States was saleable under section 1910 of the Code of Civil Procedure, read in connection with section 3477 of the United States Statutes, we need only say that the parties were not bound to sacrifice these contingent and doubtful claims. It was indeed their duty to nurse them and to realize all they could upon, them for the benefit of their customers or of their creditors, and they also had a right to do as much for themselves when their customers were' settled with. With what propriety, for instance, could either of these parties have rushed into a court of equity while they were carrying the securities already referred to after the dissolution, that is, from that time down to August, 1873? Would it have been a proper performance of duty to leave these securities to the tender care of a receiver and to trust to his borrowing money from time to time, under authority of the court, to save such securities from being sacrificed ? And would it not, as against their customers, have been a downright breach of trust to permit a receiver to sell at auction so nebulous a claim, for instance, as that against the government? So, too, as to the claims against Dauchy and Neill. JDauchy gave the firm a mortgage upon land in Connecticut, in which he had a vested remainder, subject to a life estate in his father. And the defendant actually authorized and requested a New York attorney to employ a Connecticut attorney to foreclose this mortgage as late as July, 1884. Neill had no immediate assets, but he had a contingent interest in real estate in this city liable to be defeated by his death before his mother.

These examples serve to suggest the reason for the rule stated by Finch, J., that the right to an accounting and settlement may accrue upon dissolution, and does accrue when “ some material necessity exists ” therefor, and no other fact or circumstance bars or postpones the remedy, all of which is another and more illustrative way of expressing the general principle, which runs through all the cases, that the statute does not necessarily run immediately upon dissolution, and that the question whether or not it does run, must be determined upon the peculiar facts of each case. It is also suggested that even in an action strictly between partners, the receiver need not sell contingent and doubtful claims, but that these claims could be reserved and the rights of the parties adjusted upon such a winding up as might be presently possible, making proper provision, however, for the future division of what might ultimately be realized upon contingent or doubtful claims. This suggestion, however, is based upon the former theory of the action. Of course, when it was found, as a fact, that the plaintiff was suing as a firm liquidator, and that the defendant owed the firm a specified sum, a cause of action for that specific sum, or for an accounting to ascertain such sum, was shown. The defendant, upon that theory, was bound to pay that specific sum (or whatever sum might be shown upon an accounting to be presently due), without regard to future credits. But, under the present findings, the question is not what he owed the firm, or was bound to make good to the liquidator at the moment of dissolution, but what, upon a final adjustment, he owed, the plaintiff as a partner. That depended, as the learned judge has found, upon his net indebtedness to the firm, namely, his gross indebtedness according to the books, less his proportionate share of all future collections; and, consequently, his indebtedness to the plaintiff upon a final adjustment could not be ascertained or estimated until the assets had been realized.

The learned judge has found that the defendant was entitled, as against the specific sum which he owed the firm, to be credited with one-fifth of all sums which might thereafter be collected and realized from the assets of the firm. And this finding is not excepted to. Now, what is the force of this finding? The defendant was certainly not entitled to these credits as against a liquidator in a liquidator’s action; that is not presently entitled to such credits. He was bound, in such an action, to respond for his gross indebtedness; and for his credits he had to await future collections. If, therefore, he is entitled to such credits in this action, it is because of the character of the action, because, in truth, it is an action not by an authorized agent of the firm to collect an overdraft, but an action by one partner to compel his copartner to pay to him the balance due upon the 1st day of July, 1884, the date specified in the complaint as that upon which, for the first time, the partnership tranactions as between partners, could be adjusted.

In addition to this finding, and in connection therewith, the learned judge has specifically found that — we quote the language — “ the amount of defendant’s indebtedness to the plaintiff depended upon the amount of his indebtedness to the firm, and could not be ascertained or estimated until the assets of said firm were collected or realized and defendant’s account with the firm had been adjusted. And defendant has claimed to be credited toith his share of said assets when collected or realized”

This latter finding is excepted to, out the evidence in support of it is, as we have seen, overwhelming. The parties acted upon this view of the defendant’s rights, and their understanding, as it may be gathered from their acts and methods of liquidation, plainly was that neither party should be precipitate, and that the defendant should have the full benefit of all collections before any final accounting between' the parties as partners should he required.

The fact is that there was no difference or disagreement between the parties upon the dissolution. There was nothing to go into a court of equity about. There wére, then, no charges or counter-charges. They simply proceeded, each of them, with the liquidation 'in the manner and upon the principles found by the learned judge at Special Term. The first nominal divergence occurred in 1880 and 1881, when the plaintiff demanded a settlement. But the real divergence occurred only when the liquidation was completed and the hour for final adjustment, accounting and money judgment thereupon had arrived. It was, then, that the defendant put in his answer in this action and for the first time alleged that' the business and affairs of the firm had been settled and adjusted, at the date of the dissolution, by the transfer of all the assets thereof to the plaintiff; an allegation, however, which conflicted with his own subsequent testimony and which he has been compelled to abandon.

The learned counsel for the appellant does not dispute that the liquidation was peaceable, nor does he bontend that there was any special cause for appealing to the courts, or indeed any cause whatever save the inherent right which he insists always vests eo instanti upon dissolution. But he does contend that the precise action could have been brought by the plaintiff at once. It is really difficult to .appreciate the force of this contention, and especially difficult to comprehend the meaning of the statement which follows and upon which the contention is founded, namely, that if such an action as the present had been then brought, the allegations of the complaint and the prayer for relief would have been identically the same as they are now.

How could the plaintiff have alleged in October, 1812, that there remained outstanding and unadjusted copartnership transactions on the 1st day of July, 1884, and that these transactions had never been settled or wound up, and could not be until the date last mentioned ? And how could the plaintiff in October, 1872, as a sequence to this last allegation, further allege that no final adjustment of the business or accounting between the “ parlies, as partners,” has been had ?

But, apart from this, the statute did not necessarily run, even against such a. cause of action as that set forth in this complaint — omitting these impossible averments — for clearly the parties could postpone the ordinary remedy for a reasonable time¿ or until such remedy, because of some new fact or future circumstance, became needful.

Our conclusion is that, upon the pleadings, the proofs and the findings, this case, in its true aspect, comes within the principle to which we have already adverted, and we think, therefore, that, upon its own special facts, the statute of limitations did not run at the time of dissolution, which was the 21st day of October, 1872, nor certainly between that date and the 5th day of August, 1874, which latter date preceded the commencement of this action by ten years. This conclusion is all that is necessary to sustain this judgment, although we have no doubt, upon all the facts, that the running of the statute was deferred, at least, during the continuance of the partnership for partnership purposes. But, further than this, upon both principle and authority, the partners could postpone the right to an accounting, as between themselves, until the business had been peaceably liquidated, to the end that all payments and receipts might be embraced in such accounting and it might thus be final. No reasons occur to us for doubting that partners may do this if they please, and that they have done so in a given case may be implied from their acts in proceeding severally with the liquidation without antagonism (each, as here, giving the other assistance from time to time in effecting realizations) and without cause for seeking judicial aid.

"We think, therefore, that the real cause of action stated in the complaint, and found by |he learned judge upon ample evidence, was a cause of action for a final accounting, which had, by mutual consent, been postponed until the defendant could receive credit for his share of all collections, and until his net indebtedness thereon could be ascertained. And this cause of action did not arise until the date specified in the complaint, when the copartnership transactions could finally be wound up, namely, “ on or about the 1st day of July, 1884.”

For these reasons, as well as for those given by Mr. Justice O’Brien, the judgment should therefore, be affirmed, with costs.

Van Brunt, P. J., concurred.

Judgment affirmed, with costs.

Note.— The following is the opinion of Mr. Justice O’Brien:

O’Brien, J. This action, commenced in August, 1884, is brought for the purof settling the affairs of the copartnership of H. 'W. Gray & Co., composed of the plaintiff and defendant. The agreement of partnership, which was verbal, commenced on the 1st day of January, 1870, and terminated on the 21st day of October, 1872, by mutual consent. The agreement of dissolution was verbal. At the dissolution the partnership owed $215,016.44. Of these, the larger debts had been paid prior to August 5, 1874, but some small items which, for lack of funds, remained unpaid, were assumed by plaintiff.

The uncollected assets consisted of claims amounting to about thirty-four thousand five hundred dollars, and in addition a claim against the United States, which was not collected until August, 1875.

Another, the Dauchy claim, was not collected until December, 1887, and some others being worthless have never been collected.

At the dissolution there was $501.84 in cash in bank, which was subsequently drawn out by defendant by checks signed “H. W. Gray & Co., in liquidation,” and used to pay debts.

It is conceded that a proper adjustment of the accounts of the copartnership will show that defendant is indebted to plaintiff in a considerable sum. The sole defense relied upon, and the sole question presented for consideration, s the statute of limitations.

There have been two trials before referees, two appeals to the General Term (41 Hun, 524; 53 Hun, 637), and one appeal to the Court of Appeals (125 N. Y., 203). On this last appeal the Court of Appeals reversed the judgment below in favor of plaintiff, and held, upon the case then under review, that the cause of action was barred by the statute of limitations, and ordered a new trial.

It remains, then, to determine, on this third trial, whether any different facts appear from those upon which the former adjudication was reached.

It appears to me that there are two facts now conclusively established which completely change the aspect of this case as it was presented to the Court of Appeals. These facts are, first, that when the firm was dissolved there was no-agreement as to wlio should be the liquidator; and, second, there was no disagreement between the parties as to their respective rights and interests, or as to the mode and manner of liquidation.

It seems that, upon the previous trial, the plaintiff testified that at the time of the dissolution it was agreed that he was to liquidate the business. I-Ie now says that there was no express agreement upon the subject, and that there was no agreement of any kind that the defendant should not participate in the liquidation.

The defendant says that there was “a tacit understanding” that the plaintiff was to be the liquidator, but he does not assert that there was such an agreement. Indeed, he could not well have made that assertion, for it appears, without dispute, that he dealt with money which was in the bank at the time of the dissolution, ás a liquidating partner might, and further, that he paid a part, at least, of the debts due by the firm out of this very money.

It is quite evident that the plaintiff, upon the former trial, meant to testify to his understanding of the situation rather than to any actual agreement, written or verbal, between himself and the defendant. Undoubtedly the plaintiff, being more deeply interested than the defendant, felt that he was principally concerned in the liquidation, but it is impossible to find upon the evidence that there was-any actual or binding agreement that either party should be the sole liquidator to the exclusion of the other. The criticism is, however, a natural one, that the plaintiff’s present attitude results from the circumstance that the Court of Appeals treated the supposed'fact of his being the liquidator as fundamental. But that criticism is not borne out by the defendant’s testimony, nor by the conceded facts with regard to the liquidation. The fairer criticism is, that the plaintiff, upon the former trial, erred in characterizing what actually transpired, as an agreement. What he then stated was really nothing but a layman’s inaccurate conclusion as to the legal effect of his own and his partner’s acts. There can be no doubt upon a fair review of all the evidence, that while it may have#been expected that the plaintiff would be the most active in the liquidation, and would probably do most of the work, yet there was no agreement (or understanding even) that the defendant should be excluded, or that the plaintiff should have the sole right in the premises. The other fact is equally clear. There was no disagreement between the parties, radical or otherwise, at the time of the dissolution; no demand for the immediate restoration of any sum overdrawn; and indeed it was not until long after the dissolution, when debts bad been paid and assets collected, that the plaintiff even asked the defendant for a settlement.

Upon these facts, the opinion of the Court of Appeals is suggestive of an entirely different result from that arrived at upon the theory that the action was brought by a sole liquidator to compel the restoration by a defaulting partner of sums which he had overdrawn and which should be “ restored to the firm and to the depleted capital.” Upon the facts, as they now appear, it is plain that the statute could not run against the cause of action set forth in the complaint while the parties were peaceably proceeding with the liquidation, from which, when completed, the final result sought could alone be ascertained. Undoubtedly a court of equity, upon the dissolution of a firm, can proceed to wind up its affairs through the instru mentality of a receiver. So, also, a liquidating partner may at once, in case of disagreement, apply for relief in that form. These actions, however, are not this action, and the plaintiff is certainly not barred from bringing this action merely because, immediately upon dissolution, he might, had there been a disagreement, have brought another and entirely different action. The present action proceeds upon pre-existing facts with regard to the peaceable liquidation of the affairs of the firm. The complaint alleges chat no final adjustment of the business, as between the partners, has ever been had, and the plaintiff demands such final adjustment, and, as a result, that the defendant-pay him the balance which may be found due thereupon. There is not a word in the complaint about winding up the affairs of the firm generally. The court is not asked to appoint a receiver to do this. There is not a suggestion, even, of an unpaid debt. There was nothing for a court of equity to do, under this complaint, except to strike the balance between the parties for which the liquidation out of court had furnished the foundation; nothing, in fact, save to declare and decree the result of a final accounting, based upon such non-judicial liquidation. What, though either party might, upon the original dissolution, have brought an action to have the affairs of the firm judicially wound up? May they not, nevertheless, wind up their own affairs in their own way, without resorting to a court of equity ? And can it be said that, while they are thus peaceably proceeding, in their own way, to reduce their assets into money and to pay their debts, the statute is day by day running against the final result of this method of liquidation? It is true that a defaulting partner may, hy a suit in equity, be required to make good what he has overdrawn, but that can only be accomplished by a decree reserving for future apportionment the uncollected assets in which 'he is interested, or directing the sale of such assets. The reason of this is that the amount of his indebtedness, no matter what he has drawn out, is dependent upon the amount of his interest in the assets. Now, if the partner who charges such overdrawing, instead of pressing his claim growing out of that circumstance, chooses to await the collection of the assets in the ordinary way, and the ascertainment thereupon of the sum really due him, is it not apparent that his right of action therefor commences-when the sum so due has been thus ascertained, or at least when it can readily be ascertained, without resort to a winding-up suit and a receiver ? And would not this ordinary process of personal liquidation without suit be much fairer to the defaulting partner, in view of the consideration that he is entitled to credit for his share of what the assets produce, and is only liable to his copartner for the balance due after receiving such credit? That balance, in the case of a winding-up suit, could only be ascertained by a receiver’s sale of the assets, and thereby tlie liability of the derelict partner might be seriously increased. It may be added that, in a case like the present, such liability could not be ascertained even' in this manner, for an important asset of the firm, namely, the claim against the government, could not be sold at all. (United States Rev Stat., § 3477.) Such a sale is not only prohibited by this section of the Federal statute, but also by the Code of Civil Procedure. (Code of Civ. Pro., § 1910, sub. 3.) Why, then, may not the parties, instead of seeking to ascertain, by suit, the amount payable by the defaulting partner, leaving in abeyance a claim which cannot possibly be sola, await the collection of such claim in due course, and then settle the final-balance upon a proper apportionment of the sum collected? And, if they choose to act upon the latter principle, can it be doubted that the right to a final accounting and to the payment of the final balance due, only ensues when the collection upon which it is predicated has been made.

This principle was expressly held by the Supreme Court of the United States in Riddle v. Whitehill (135 U. S., 637), where Chief Justice Fuller, speaking for the court, observed that: “ Where, however, partnership affairs are being wound up in due course, without antagonism between the parties, or cause for judicial interference ; where assets a/>'e being realised upon and liabilities extinguished, and no settlement has been made, the cause of action has not accrued and the statute has not begun to run.

A more decisive statement of the law upon the facts of the present case, as now presented, it would'he difficult to find. And it is in entire harmony with the decision of the Court of Appeals based upon the facts presented to that tribunal, namely, that the plaintiff was, by agreement, the sole liquidator of the firm, and that there was such antagonism between the parties as called for judicial interfer'ence. As we have seen there was, in fact, no such agreement and no such antagonism. Although the defendant had overdrawn his interest in the firm, the plaintiff had no desire to force immediate restoration without regard to the results of ¡amicable liquidation. He was perfectly willing to wind up the affairs of the firm '“in due course, and without antagonism,” and thus, in a fair and reasonable way, without litigation or forced sales, to ascertain the precise measure of the defendant’s liability If the defendant’s contention should he sustained, the plaintiff would be rewarded for his consideration by the loss of his entire claim. Thus an absolute rule would be laid down that the statute, under any and all circumstances. must run from the date of dissolution against an action to ascertain and decree payment of the sum due by one partner to another upon a final accounting. Such a rule would include even a case where complete liquidation was finally brought about by one partner putting his hand in his pocket and paying off the last claim against the firm. If this latter act were performed ten years after the dissolution, the partner thus paying off the last obligation would still be remediless. It might well be that a contingent liability of the firm could not be ascertained until more than ten years after the dissolution; and the final adjustment of the partnership affairs would be impossible until such contingent liability had been ascertained. On the other hand, it might well be, as in this case, that, owing to the non-assign-ability of a claim in favor of the firm, a considerable period must elapse before that side of the partnership account could be adjusted, and the balance due from one partner to the other ascertained. Until it becomes possible to so adjust the accounts between the members of the firm as to ascertain precisely how the copartners stand to each other, it would seem to be clear that a cause of action for such final adjustment does not accrue. Any other rule would be hostile to private and friendly adjustment, whereas such measures of adjustment should certainly be encouraged. It would, in fact, be equivalent to a prohibition of private liquidation, or of an arrangement whereby the sum due by one partner to another upon a final accounting should be ascertained amicably and without i'udicial intervention, at least in any case where the liquidation was likely to be protracted, and it would be in direct opposition to all the authorities.

We have already referred to Riddle v. Whitehall (185 U. S., 621). The principle there stated is also, in substance, enunciated in Massey v. Tingle (29 Mo., 487); Cannon v. Copeland (48 Ala., 201; Gleason v. White (34 Cal., 258; McClung v. Capehart (24 Minn., 17); Todd v. Rafferty (3 Stewart [30 N. J. Eq.], 254) and Bradford v. Spyker’s Administrator (32 Ala., 134). The text-books state the same principle. Thus, in Wood on Limitations (§ 210, p. 430), it is said: “The statute does not run between partners so long as the partnership continues, and each partner is in the exercise of his right, nor necessarily after its dissolution where there arre debts due to or from it. There is no definite rule of law that the statute begins to run immediately upon the dissolution of the partnership, anc\ the question as to whether it does or not must depend upon the peculiar circumstances of each ease.”

So, in the opinion of the Court of Appeals in the present case, Finch, J„ observes ■that “ the right to an accounting and settlement may accrue upon the dissolution and does accrue at least where some material necessity exists and no other fact ■or circumstance bars or postpones the remedy.’’ Such a doctrine, therefore, as tlie defendant contends for would clearly violate the general principles which govern in actions between partners. It would also overturn the rule that where the parties are proceeding amicably to wind up the business, without judicial intervention the firm continues to exist “ for the purpose of collecting, settling up and distributing its assets and performing its antecedent enagagements.” This was the language of Huger, Ch. J., in Kennedy v. Porter (109 N. Y., 552), citing Griswold v. Waddington (16 Johns., 438); Hubbard v. Matthews (54 N. Y., 43); King v. Leighton (100 N. Y., 386). “The partnership,” said the Chancellor, in Griswold v. Waddington, “may be said to continue as to everything that is past, and until all pre-existing matters are wound up and settled.” (See, also, Gow on Partnership [3d Am. ed.], 230, 231.)

The partnership may certainly be said to have continued here until the claim against the United States, which no receiver could sell, had been collected by the parties. While the firm thus continued to exist, and while other claims besides that against the United States remained outstanding, collections 'were made, from time to time, which were applied to the reduction of the defendant’s indebtedness. These collections continued until a late period. The defendant has had the benefit of them all, and they enter into the final account which is now to be adjusted and settled.

The action upon both the pleadings and the proofs is for a judicial dissolution of the partnership — a partnership which maybe said, in the language of the chancellor (supra), to have continued pending these collections for a final accounting as to all its transactions, including such collections and for judgment against the defendant for whatever sum he may be found indebted to the plaintiff after the due application of all such collections. The latter is the substance of the prayer; all else is incidental or superfluous.

The “facts and the circumstances” which Finch, J., suggested might postpone the remedy are now before the court. They may be briefly recapitulated. One of such circumstances is, that the plaintiff was not appointed sole and exclusive liquidator, and consequently his complaint is not that of a quasi trustee, whose duty it may have been forthwith to compel the defaulting partner to restore what lie had overdrawn. His complaint, read in the light of the present proofs, is simply that of one partner seeking, after years of amicable and mutual liquidation, to obtain an appropriate judgment founded upon the result of such amicable liquidation.

Another of such circumstances is, that there were no differences between the parties with regard to the defendant’s overdrafts, and that the extent of his liability was plainly left in abeyance to be determined only by the practical results of the amicable liquidation which both parties contemplated.

Still another circumstance is, that the defendant received credits from time to time, as collections were made, which reduced his liability, and several of these credits were within the ten years which preceded the commencement of this action.

And, lastly, the nature of one of the assets was such that it could not possibly have been realized in a winding-up suit, and that the partnership necessarily continued in existence for the purpose, at least, of reducing this claim to possession.

The plea of the statute, as against such an action, is not, upon the facts now before the court, sustained either upon principle or by authority, and the plaintiff should, therefore, have judgment as asked in his proposed findings.


author: Barrett, J.: Tan Brunt, P. J.:

text:
    JAMES R. HAY, Respondent, v. THOMAS C. PLATT, as President of the United States Express Company, Appellant.

      Brokers — commissions on sale of real estate — when they are earned.

    In an action brought by James E. Hay to recover commissions for services alleged to have been rendered as a real estate broker in having made a sale to the Union Trust Company of certain premises which belonged to the United States Express Company, it appeared that Hay had had but one interview (sought by himself) with Thomas C. Platt, the president of the express company, in which Platt said, in effect, that the Union Trust Company, or anyone else, could have the property for $400,000, which price Hay, in June, 1886, two years before the sale was made, stated to the vice-president of the Union Trust Company, who said the property was available, but that the Union Trust Company did not want it until it had finished negotiations for certain other lots. Hay did not report this interview to Platt, or ever bring to him an offer for the property.
    In 1888 the property was sold by Platt to the Union Trust Company without the intervention of Hay, and it appeared that, in the meantime, Platt had had no dealings with Hay.
    Upon an appeal from a judgment in favor of the plaintiff:

      Held, that the judgment could not be sustained.
    That, in order to recover commissions, the broker must be the procuring cause of the sale; that is to say, he must produce a customer ready and willing to enter into a contract upon the terms of his principal.
    That where the broker had failed in this respect, and had abandoned further efforts, the principal violated no right of the broker in negotiating with the proposed customer directly and independently.
    Appeal by the defendant Thomas C. Platt, as president of the United States Express Company, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 27th day of June, 1892, upon a verdict for the plaintiff for $2,420.67, after a trial at the New York Circuit before the court and a jury; and also from an order of said court, made pn the 23d day of June, 1892, denying a motion for a new trial on the minutes.

      Albert B. Boardman, for the appellant.

      Page & Taft, for the respondent.
   Barrett, J.:

This action is for the recovery of a broker’s commission upon the sale of certain real estate belonging to defendant. The main question is, whether the plaintiff was the procuring cause of the sale.

• It appears from the plaintiff’s testimony that he had nothing to do with the immediate negotiations which resulted in the sale, and, in truth, knew nothing of the final transaction until it was completed. He bases his claim upon the fact that some two years prior to the sale he called the purchaser’s attention to the property and informed such purchaser that it could be bought for the sum which was finally paid for it. The plaintiff had but a single interview with the defendant’s president (Mr. Platt) upon the subject, and that interview he sought. It lasted ten or fifteen minutes, and the substance of it was that Mr. Platt said that Mr. King (president of the Union Trust Company), or anyone else, could have the property for $400,000. That was the last Platt saw or heard of the plaintiff in the matter for about three years, when he called a second time to ask for a commission. At this time the sale had been closed for about a year. All that the plaintiff did after his first interview with Platt was to inform Mr. King, and also Mr. McLean (who was the vice-president of the Union Trust Company), what Platt had said. This was in June, 1886. These gentlemen expressed surprise at the price, and made no offer of any kind. McLean finally said — we quote'the plaintiff’s testimony: “Well, that is available property, but we do not want that property until we are through with our negotiations for the properties on the corner of Broadway and Wall;” and after a little further conversation that interview ended.

The plaintiff, it will be observed, did not report back to Platt the result of this interview with Messrs. King and McLean, nor, in fact, did he do anything further in the matter, although he says he had interviews with representatives of the trust company extending down to August of the same year. These interviews, however, resulted in no offer for the property, and were not reported to Mr. Platt. There the matter rested until some two years later, when the property was independently sold.

It is entirely clear that, upon this state of facts, the plaintiff had no cause of action. He did nothing whatever to bring about the sale, except to inform Mr. King that the property could be purchased for $400,000. He was authorized to sell the property for this sum, but he failed to bring the trust company to Platt’s terms; failed, in brief, to secure a purchaser. He claims, however, that the negotiations between the two companies were simply held in abeyance until the trust company could ascertain whether certain neighboring property was also to be had. But there were no continuous negotiations between these companies during these two following years, and the plaintiff never even suggested to Mr. Platt that in case the trust company ultimately succeeded in securing the neighboring property, it might then offer the defendant $400 000 for the real estate in question.

It was really immaterial why, or for what reason the ttrus company failed to come forward in June, 1886, and offer the defendants their price for the property. The price was not offered, and that ended the matter. The parties were never brought together, and the plaintiff was in no sense the procuring cause of the sale, which was ultimately made. If the plaintiff, upon the facts of this case, is entitled to a commission, it must be simply upon the ground that his information suggested to the defendant’s officers a possible customer for their property. But, of course, such a position is entirely untenable. The broker must be the procuring cause of the sale. He must produce a customer ready and willing to enter into a contract upon the employer’s terms. (Wylie v. Marine National Bank, 61 N. Y., 415; Sibbald v. Bethlehem Iron Company, 83 id., 378; Wiite v. Twitchings, 26 Hun, 503.)

The employer violates no right of the broker in negotiating directly with the proposed customer after the broker has failed to bring such customer to the specified terms, and has abandoned his efforts in that direction. Nor is he liable for a commission under such circumstances, if his independent negotiation results in a sale. (Same cases.)

The broker may, as was said by Finch, J., in Sibbald v. Bethlehem Iron Company (supra), “ have introduced to each other, parties who otherwise would have never met; he may have created impressions which, under later or more favorable circumstances, naturally lead to, and materially assist in the consummation of a sale; he may have planted the very seeds from which others reap the harvest; but all that gives him no claim.”

The plaintiff’s case is clearly within these principles. He endeavored here to sell, and he failed. He told Mr. Platt that he thought he had a customer in the trust company. It may have been the recollection of this statement which induced the defendants, two years afterwards, to apply directly to the officers of this trust company, and to tell them that if they wanted the property they must speak at once, or it would be sold to someone else.

In other words, Platt probably thought he would try and sell the property himself to one who formerly had been suggested as a possible purchaser This is what it comes to and all it comes to. The suggestion that during the two years of non-action Platt was waiting for the trust company to close its other negotiations, and that, in fact, both companies were abiding the result of these other negotiations is entirely without support in the evidence.

We have not overlooked the testimony with regard to conversations between the plaintiff and Mr. Wood, the defendant’s treasurer, between June, 1886, and sometime in the year 1888. These conversations, however, were clearly inadmissible. Mr. Wood had no authority to bind the defendants and the conversations, in question, were not in the line of the treasurer’s duty. They were simply desultory observations made at casual meetings outside of the company’s office, and were in no sense admissible as part of the res gestee.

But, further, even if admissible, they had no probative value with regard to the real issues. The plaintiff says they “ were generally to the effect that a sale would be finally consummated of the United States Company’s property to the Union Trust Company,” and that “Mr. Wood said he hoped that would be the result; that he would be glad to see me (plaintiff) earn so handsome a commission.”

Such loose talk did not alter the facts; that the plaintiff abandoned all effort in the matter; that he never brought the parties together; that he never procured an offer of $400,000; that he was not to quote the language used in White v. Twitchings (supra), “ the .procuring cause of the identical contract of sale,” and that the sale was the result of independent negotiations between the parties, to which they were not moved by any act of the plaintiff’s.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, J"., concurred.

Tan Brunt, P. J.:

I concur. Simply because a broker calk the attention of a particular person to a piece of property, as being for sale, does not give him a lien upon that person in respect to that property for all time to come.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.