Haber v. Orszag

Appellate Division of the Supreme Court of New York

Haber v. Orszag

181 A.D. 771, 169 N.Y.S. 225, 1918 N.Y. App. Div. LEXIS 4414

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 21, 1918

StatusPublished

This text of 181 A.D. 771 (Haber v. Orszag) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Haber v. Orszag, 181 A.D. 771, 169 N.Y.S. 225, 1918 N.Y. App. Div. LEXIS 4414 (N.Y. Ct. App. 1918).

Pincite

Opinion

Dowling, J.:

This action was brought for the dissolution of a copartnership between the parties herein and for an accounting of the partnership affairs. The complaint was dismissed upon the erroneous theory that the parties were not copartners. The agreement between them was in writing and constituted them copartners in the business of manufacturing and selling Hungarian playing cards. They repeatedly characterize themselves in the agreement as copartners, and their relation as that of a copartnership. Every clause of the contract demonstrates that it was their intention to form a copartnership, and that intention they effectuated by a proper and adequate written agreement. The fact that they agreed, among other things, that plaintiff herein should not be liable for debts or liabilities incurred by the defendant in the business, did not destroy the character of the association as a partnership. Having agreed so to associate themselves, it was competent for them to determine how the profits and losses should be [772]*772apportioned. The case of Freeman v. Miller (157 App. Div-715), relied upon by the court below, has no application to the case at bar. In that case there was no written agreement of copartnership, and this court held that no such agreement had been proved by which plaintiff therein was to have an interest in the business or in the profits as such, but merely a compensation for his services to be measured by the profits. Here there is a written, unequivocal, explicit agreement of partnership.

The following findings of fact are reversed as being absolutely without evidence to support them: III, IV and V; also those numbered I and II are reversed as inadequately stating the terms of the written agreement. The conclusions of law are also reversed.

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

Scott, Laughlin, Smith and Davis, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.

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Dowling, J.:

This action was brought for the dissolution of a copartnership between the parties herein and for an accounting of the partnership affairs. The complaint was dismissed upon the erroneous theory that the parties were not copartners. The agreement between them was in writing and constituted them copartners in the business of manufacturing and selling Hungarian playing cards. They repeatedly characterize themselves in the agreement as copartners, and their relation as that of a copartnership. Every clause of the contract demonstrates that it was their intention to form a copartnership, and that intention they effectuated by a proper and adequate written agreement. The fact that they agreed, among other things, that plaintiff herein should not be liable for debts or liabilities incurred by the defendant in the business, did not destroy the character of the association as a partnership. Having agreed so to associate themselves, it was competent for them to determine how the profits and losses should be [772]*772apportioned. The case of Freeman v. Miller (157 App. Div-715), relied upon by the court below, has no application to the case at bar. In that case there was no written agreement of copartnership, and this court held that no such agreement had been proved by which plaintiff therein was to have an interest in the business or in the profits as such, but merely a compensation for his services to be measured by the profits. Here there is a written, unequivocal, explicit agreement of partnership.

The following findings of fact are reversed as being absolutely without evidence to support them: III, IV and V; also those numbered I and II are reversed as inadequately stating the terms of the written agreement. The conclusions of law are also reversed.

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

Scott, Laughlin, Smith and Davis, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.

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Bluebook (online)

181 A.D. 771, 169 N.Y.S. 225, 1918 N.Y. App. Div. LEXIS 4414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haber-v-orszag-nyappdiv-1918.