Stirn v. Hemken

New York Supreme Court

Stirn v. Hemken

25 N.Y.S. 583, 72 Hun 91, 79 N.Y. Sup. Ct. 91, 55 N.Y. St. Rep. 759

DecidedOctober 13, 1893

StatusPublished

This text of 25 N.Y.S. 583 (Stirn v. Hemken) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stirn v. Hemken, 25 N.Y.S. 583, 72 Hun 91, 79 N.Y. Sup. Ct. 91, 55 N.Y. St. Rep. 759 (N.Y. Super. Ct. 1893).

Pincite

Opinion

PER 'CURIAM.

This action was brought to compel defendants to account under an agreement by which they, under the firm name of Hemken, Slayton & Co., bound themselves to pay commissions on certain goods to be imported and sold. The agreement wras for a term of five years, and was dated January 30, 1888. The defendants, having immediately thereafter imported and sold the goods therein mentioned, rendered an account in March, 1888, for plaintiff's share of the profits, and paid him the amount, informing him at the same time that the firm would discontinue dealing in such goods. Subsequently, and in September, 1889, the firm dissolved by the retirement of Toepken, one of its members, and thereafter the remaining partners formed a new firm under the name of Hemken & Slayton, and continued the business until 1890, when Slayton retired, and the defendant Hemken thereafter conducted the business in his own name. Upon such facts, the trial judge decided that plaintiff was entitled to an accounting, but limited the date of the accounting to September, 1889, which was the date of the dissolution of the firm with which the contract was made; and it is from such limitation that this appeal is taken, the appellant contending that he was entitled to have an accounting from each and all of the defendants for the entire period of five years. The difficulty with this contention, however, is that there is no proof in the case that subsequent to March, 1888, any of the articles mentioned in the contract were imported or sold by the defendants. But, apart from this, we think the trial judge properly limited the account to the date when the firm Avas dissolved. The fact that another firm was organized did not impose upon such firm all the obligations of a former firm with which some of its members may have been connected. Of course, there are cases which are authority for the position that had the new firm assumed the obligations of the contract, or if it had been proven that they continued the importation' and sale of these goods, thus reaping the benefits under the contract, some basis might have been laid for an accounting beyond the date of the dissolution of the first firm; but, in the absence of such evidence, we think that the conclusion [585]*585reached by the trial judge was as favorable to the plaintiff as the facts warranted. The judgment appealed from should therefore be affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

PER 'CURIAM.

This action was brought to compel defendants to account under an agreement by which they, under the firm name of Hemken, Slayton & Co., bound themselves to pay commissions on certain goods to be imported and sold. The agreement wras for a term of five years, and was dated January 30, 1888. The defendants, having immediately thereafter imported and sold the goods therein mentioned, rendered an account in March, 1888, for plaintiff's share of the profits, and paid him the amount, informing him at the same time that the firm would discontinue dealing in such goods. Subsequently, and in September, 1889, the firm dissolved by the retirement of Toepken, one of its members, and thereafter the remaining partners formed a new firm under the name of Hemken & Slayton, and continued the business until 1890, when Slayton retired, and the defendant Hemken thereafter conducted the business in his own name. Upon such facts, the trial judge decided that plaintiff was entitled to an accounting, but limited the date of the accounting to September, 1889, which was the date of the dissolution of the firm with which the contract was made; and it is from such limitation that this appeal is taken, the appellant contending that he was entitled to have an accounting from each and all of the defendants for the entire period of five years. The difficulty with this contention, however, is that there is no proof in the case that subsequent to March, 1888, any of the articles mentioned in the contract were imported or sold by the defendants. But, apart from this, we think the trial judge properly limited the account to the date when the firm Avas dissolved. The fact that another firm was organized did not impose upon such firm all the obligations of a former firm with which some of its members may have been connected. Of course, there are cases which are authority for the position that had the new firm assumed the obligations of the contract, or if it had been proven that they continued the importation' and sale of these goods, thus reaping the benefits under the contract, some basis might have been laid for an accounting beyond the date of the dissolution of the first firm; but, in the absence of such evidence, we think that the conclusion [585]*585reached by the trial judge was as favorable to the plaintiff as the facts warranted. The judgment appealed from should therefore be affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

25 N.Y.S. 583, 72 Hun 91, 79 N.Y. Sup. Ct. 91, 55 N.Y. St. Rep. 759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stirn-v-hemken-nysupct-1893.