Barclay v. Barrie

New York Supreme Court

Barclay v. Barrie

64 Misc. 403, 119 N.Y.S. 463

DecidedAugust 15, 1909

StatusPublished

This text of 64 Misc. 403 (Barclay v. Barrie) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barclay v. Barrie, 64 Misc. 403, 119 N.Y.S. 463 (N.Y. Super. Ct. 1909).

Pincite

Opinion

Greenbaum, J.

Permanent incapacity of a partner constitutes good ground for a dissolution of the partnership. Upon the demurrer to the complaint it must be assumed that the defendant is practically incapacitated from personal attention to the duties assumed by him under the copartnership agreement. The argument of the learned counsel for the defendant that the langmage of the seventh clause of the agreement is to be construed as providing an exclusive remedy of damages for breach of the obligations of either party to render personal services is not convincing. The obvious purpose of this clause was to afford the aggrieved party the right to claim damages from the other as therein provided, and to furnish the defaulting party a locus pmnitmtm and to remedy the trouble complained of. The reasoning of the counsel is too subtle and refined and omits sufficiently to recognize the import attaching to the words “ or to any relief whatsoever ” in the seventh clause. The contract contemplated that each partner give a reasonable amount of time and attention to the business, but assuredly this did not mean that a partner permanently stricken with disease and disabled from giving any attention to the business was to be absolved from the obligation to devote a “ reasonable” amount of time as contemplated by the parties when they entered into the partnership agreement.' It seems to me that the complaint states a sufficient cause of action and the demurrer must be overruled, with costs, with leave to defendant to answer upon payment of costs.

Demurrer overruled, with costs, with leave to defendant to answer upon payment of costs.

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Greenbaum, J.

Permanent incapacity of a partner constitutes good ground for a dissolution of the partnership. Upon the demurrer to the complaint it must be assumed that the defendant is practically incapacitated from personal attention to the duties assumed by him under the copartnership agreement. The argument of the learned counsel for the defendant that the langmage of the seventh clause of the agreement is to be construed as providing an exclusive remedy of damages for breach of the obligations of either party to render personal services is not convincing. The obvious purpose of this clause was to afford the aggrieved party the right to claim damages from the other as therein provided, and to furnish the defaulting party a locus pmnitmtm and to remedy the trouble complained of. The reasoning of the counsel is too subtle and refined and omits sufficiently to recognize the import attaching to the words “ or to any relief whatsoever ” in the seventh clause. The contract contemplated that each partner give a reasonable amount of time and attention to the business, but assuredly this did not mean that a partner permanently stricken with disease and disabled from giving any attention to the business was to be absolved from the obligation to devote a “ reasonable” amount of time as contemplated by the parties when they entered into the partnership agreement.' It seems to me that the complaint states a sufficient cause of action and the demurrer must be overruled, with costs, with leave to defendant to answer upon payment of costs.

Demurrer overruled, with costs, with leave to defendant to answer upon payment of costs.

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Bluebook (online)

64 Misc. 403, 119 N.Y.S. 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barclay-v-barrie-nysupct-1909.