Wakeman v. Somarindyck

73 A.D. 601, 76 N.Y.S. 815

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1902
• Status: Published

Opinion

Willard Bartlett, J.:

The learned trial judge stated no reason for the dismissal of the complaint other than that it failed to set out a cause of action. According to the appellants’ brief, however, the ground upon which he proceeded was that inasmuch as the complaint alleged the agreement between the parties to be a copartnership agreement, no action could be brought thereon by the plaintiffs as devisees of Abram Walceman until an accounting of the partnership affairs had been had, the real estate in the meantime retaining the character of personal property.

This view was correct if the use of the term “ copartnership ” in the complaint is to be deemed conclusive as to the character of the contract. Where, however, as in the present case, the terms of the agreement are so fully stated as to negative the idea of a copartnership, it seems to me that the use of the phrase may he disregarded and that the sufficiency of the complaint should be determined by a consideration of the true nature of the agreement itself, irrespective of the adjective by which the pleader has mistakenly characterized it.

An examination of the complaint shows that the agreement of 1875 between Abram Wakeman and John J. Latting on the one side, and John W. Somarindyck on the other, did not constitute them partners at all. Somarindyck was only interested in the profits to the extent of reimbursement from Wakeman and Latting of the amount which he might expend in the purchase of real estate, together with interest on that amount. This was not sufficient to constitute him a partner. (Cassidy v. Hall, 97 N. Y. 159, 168.)

Nevertheless the contract and the transactions had thereunder, as alleged in the complaint, appear to have entitled Abram Wakeman, and to entitle the plaintiffs as his devisees, to some equitable relief, if the facts alleged shall be sustained by proper proof. (Ryan v. Dox, 34 N. Y. 307.) In the case cited the defendant had undertaken to purchase certain real estate at a foreclosure sale for the benefit of the owner of the equity of redemption, and had thus acquired the property at a price very much below its true value. Under these circumstances such purchaser was held to be a trustee of the party for whom he promised to act in buying the land, and was compelled to convey it to the party for whom he really acted upon a tender of the purchase money and interest.

I am unable to see why, under the rule thus applied, the respondent in the case at bar is not compellable, upon proof of the facts set out in this amended complaint, to account as trustee to the plaintiffs in the present action.

The judgment should be reversed and the plaintiffs afforded an opportunity to try their case.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.