Moscowitz v. Sassulsky

141 A.D. 763, 126 N.Y.S. 513, 1910 N.Y. App. Div. LEXIS 3953

Opinion

Jekks, J. :

The defendants appeal from a judgment of foreclosure of a mechanic’s lien. They concede that the “ real issue ” was whether there was a copartnership between the plaintiff and Goldberg, who is not a party. The County Court held against them upon this issue. It is not disputed that the plaintiff agreed to pay to Goldberg one-half of the profits. The plaintiff’s, version of this arrangement is that when Levy, the original associate of the plaintiff in' the work, withdrew after a few days, the plaintiff offered to continue the work, whereupon the defendant Sassulsky insisted that the plaintiff must give Goldberg, his brother-in-law, the opportunity to take part in the work. The plaintiff refused to take Goldberg as a partner, but offered to give to him one-half of the profits in return for his services. The work did not call for-a large number of men, and Goldberg acted as superintendent in the absence of the plaintiff. There is nothing anomalous in the amount of this compensation for Goldberg’s services in view of their character and the attitude if not the virtual coercion of Goldberg’s brother-in-law, one of the owners of the premises. So far as the evidence shows, the plaintiff ■ himself, to quote his own language, was “ the boss of the job,” and Goldberg’s sole relation to the work was in the rendition of services. In Leggett v. Hyde (58 N. Y. 272) the court, por Folger, J., say : “ And so Mr. Parsons, in his book on Partnership,* quoting Lord Eldoh, Ex parte Hamper:

Footnotes

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† ‘ But if he has a. specific interest in the profits themselves,’as profits, he is a partner,’ and adds, ‘undoubtedly he is; every principle of the law of partnership leads to this conclusion.’ He contends, however, that the specific interest in profits which is to make a person a partner, must be a proprietary interest in them, existing before the division of them into shares. See also 3 Kent’s Commentaries (*25, note b), where it' is said : ‘ The .test of partnership is a community of profits; a specific interest m the profits, as profits, in contradistinction to a stipulated portion of the profits as a compensation foi" services.’ The courts of this State have always adhered to this doctrine and applied or recognized it in the cases coming before them.” 1 think, then, that Goldberg was not to be regarded as a partner. If this is so, it is immaterial what he sought to do as a partner, without the authority, the assent or the ratification of the plaintiff. Under these circumstances Goldberg had no concern with the lien filed by the plaintiff and prosecuted by him, and Goldberg’s claim for any part of his compensation unpaid is against the plaintiff and not against the defendants. If the plaintiff saw fit to consent that liis lien should be reduded in its amount, that is his own concern. I advise that the judgment be affirmed, with costs.

Burr, Thomas, Rich and Carr, JJ., concurred.

Judgement of the.County Court of Kings county affirmed, with costs. '

4th ed. p. 40,, n,— [Rep.

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17 Yesey, 403.—'[Rep..