Johnson v. Kelly

9 N.Y. Sup. Ct. 139

• Court: New York Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Barnard, P. J.:

We think the complaint sets out a cause of action. The plaintiffs and the defendant are stated therein to have entered into a partnership for one year, from July 20th, 1869, in the manufacture of oil; the plaintiffs to furnish capital, and the plaintiffs to bear half the losses, and the defendant half, and to share profits in same proportion. A loss is averred, at the expiration of the partnership, of $3,376.76, and the complaint asks to recover one-half thereof of defendant, namely, $1,638.88. If the facts are true, the plaintiffs will be entitled to recover.

The partnership is terminated. A loss has been realized, and the defendant, in the article of agreement of copartnership, has agreed to pay one-half to plaintiffs.

If the answer admits the complaint, the plaintiffs will be entitled to recover a money verdict, as in an action at law.

If an issue should be made by the answer, calling for an accounting, an accounting would be ordered, notwithstanding a money judgment is demanded in the complaint.

The demurrer is simply to the prayer for judgment, and must be overruled.

Judgment reversed, with leave to defendant to answer in twenty days, on payment of costs.

Present—Barnard, P. J., and Talcott, J.

Judgment reversed, with leave to defendant to answer within twenty days, on payment of costs.