Ross v. Drinker

2 Hall 415

• Court: The Superior Court of New York City
• Decided: October 15, 1829
• Status: Published

Opinion

The Court refused to grant a new trial, being of opinion that the agreement, disclosed by the plaintiff’s answer to the defendant’s bill, did not constitute a case of partnership. And, as all the other testimony was left to the jury, and they found against the partnership, the court were of opinion, that their verdict ought not to be disturbed, being supported by the evidence.

New trial denied, and the verdict to stand subject to a liquidation of the accounts by referees.

[J. Greenwood, Att'y for the plff. C. N. Mead, Att’y for the deft.]

Note.—This cause was originally brought before the court, for argument, at its preceding J une Term. It then appeared, that the defendant had filed a bill in chancery, against the plaintiff embracing the same subjects of controversy, which were presented by the action at law; but the defendant had obtained no injunction to restrain the proceedings at law, nor had he any stay of proceedings from a Judge. The court were of opinion, that it was irregular for a party to proceed in this court, when it was apparent that another tribunal, whose jurisdiction could not be questioned in cases of partnership, had the same subject before them. The court, therefore, ordered the argument to be postponed, in order to give the defendant an opportunity to restrain the plaintiff from proceeding at law, by a proper application to Chancery. The defendant having neglected to do this, the cause was brought on at this term, and disposed of as appears by the case.