Graham v. Golding

7 How. Pr. 260

• Court: New York Supreme Court
• Decided: September 15, 1852
• Status: Published

Opinion

Mitchell, Justice.

It is admitted that no account will be necessary if the plaintiff fails to prove a partnership. The issue substantially is, whether there is a partnership or not; and then if the plaintiff succeeds, the accounting would follow to ascertain the amount which he is entititled to recover. Thus the accounting is like an inquiry to assess damages, and until it is known that there is a partnership, it can not be said in this case that the trial of the issue of fact will require the examination of a long account. In one case, that has occurred in this court, the „ previous dealings of the parties and their contract was such, that the question whether there was a partnership or not could only be ascertained by first going into the accounts—the plaintiff being entitled to be a partner on his bringing into the business a certain amount of capital, and he insisting that he had done so, and that the books would show it—there the reference was ordered. But here the question of partnership or not, does not turn on any such peculiar circumstances. The general rule, therefore must prevail, that the question of partnership be first settled by an issue, or by the court, before a reference can be ordered by the court. Motion for reference denied, without costs.