Lobenthal v. Keller

City of New York Municipal Court

Lobenthal v. Keller

2 N.Y. City Ct. Rep. 304

DecidedMarch 15, 1886

StatusPublished

This text of 2 N.Y. City Ct. Rep. 304 (Lobenthal v. Keller) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lobenthal v. Keller, 2 N.Y. City Ct. Rep. 304 (N.Y. Super. Ct. 1886).

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Opinion

McAdam, Ch. J.

The defendant’s claim for contribution- is valid to the extent, of. $150 and interest, making together $168; but it is not the proper subject of counterclaim, because it grows out of an unsettled partnership [305]*305relation existing between Mm and the plaintiff’s assignor. The defendant has a suit now pending for an accounting, m wMch he may appropriately charge the above $168 against Ms partner in the adjustment of the accounts. The following authorities sustain these conclusions: Waterman on Set-off, 178, 179; Barbour on Set-off, 90; Story on Part. §§ 221-223; 3 Hill, 188; 27 Barb. 554; Story Eg. §§ 664, 665; 14 Johns. 318; 1 Hall, 180; 6 Barb. 537; 23 Id. 184; 4 N. Y. 186; 43 Id. 598; 54 Barb. 223; 1 Duer, 667. A counter-claim, even if used merely as a set-off, is in the nature of a cross action, which cannot be maintained at law, by one partner against another, until there has been a settlement had and balance struck. The theory of the equity smt is that because the partners have not agreed upon a balance the court should, after the accounting, declare one.

The plaintiff, is, therefore, entitled to judgment for $384.04 with costs.

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McAdam, Ch. J.

The defendant’s claim for contribution- is valid to the extent, of. $150 and interest, making together $168; but it is not the proper subject of counterclaim, because it grows out of an unsettled partnership [305]*305relation existing between Mm and the plaintiff’s assignor. The defendant has a suit now pending for an accounting, m wMch he may appropriately charge the above $168 against Ms partner in the adjustment of the accounts. The following authorities sustain these conclusions: Waterman on Set-off, 178, 179; Barbour on Set-off, 90; Story on Part. §§ 221-223; 3 Hill, 188; 27 Barb. 554; Story Eg. §§ 664, 665; 14 Johns. 318; 1 Hall, 180; 6 Barb. 537; 23 Id. 184; 4 N. Y. 186; 43 Id. 598; 54 Barb. 223; 1 Duer, 667. A counter-claim, even if used merely as a set-off, is in the nature of a cross action, which cannot be maintained at law, by one partner against another, until there has been a settlement had and balance struck. The theory of the equity smt is that because the partners have not agreed upon a balance the court should, after the accounting, declare one.

The plaintiff, is, therefore, entitled to judgment for $384.04 with costs.

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Bluebook (online)

2 N.Y. City Ct. Rep. 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lobenthal-v-keller-nynyccityct-1886.

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