Arnold v. Angell

6 Jones & S. 27

• Court: The Superior Court of New York City
• Decided: July 2, 1874
• Status: Published

Opinion

By the Court.—Sedgwick, J.

The defendant moves for a new trial under section 268 of the code. I think that the motion should be denied.

The case was tried by a judge at special term. He found, as a matter of fact, that the plaintiffs had agreed with the defendant to make the advances which the evidence showed were made to the defendant, and they had mutually agreed that the plaintiffs should receive one-fourth of the profits of a certain business, until all the debts were paid, when these advances should be repaid, but the learned judge found that the parties were not partners. He further found that an account of the business should be taken, of its expenses and receipts, and of the advances made by the plaintiffs.

These findings were supported by sufficient testimony given in the case. The plaintiffs’ right of action on the facts, was in its nature equitable. The relation of the defendant to them was such that he might properly demand directly an accounting, as to the whole-of the business. The complaint did not aver a case which put the right to an accounting solely on the fact that a partnership existed, but considering the allegations of a partnership as surplusage, enough was left - to support the findings of the learned judge.

The motion should be denied, with costs.

Curtis, J., concurred.