Westerlo v. Evertson

1 Wend. 532

• Court: New York Supreme Court
• Decided: October 15, 1828
• Status: Published

Opinion

By the Court,

Savage, Ch. j.

Evertson sued Westerlo in the mayor’s court, in the city of Albany, to recover half the amount of a judgment obtained against the plaintiff and defendant, as attornies, for clerk’s fees, charged to them jointly as practising attornies.

It was contended that no action at law would lie, as the matter in controversy was a partnership concern. The recorder held, that the action will lay by one co-defendant against the other, to compel him to contribute, and that this was not a partnership transaction. If the recorder was right, then, in case two judgments are recovered against two partners, and one pays one judgment and the other the other judgment, each may maintain an action against the other for half the money paid by him, and so on to the end of the settlement of the concerns of the partnership. The fact certainly was proved, that the money paid by the plaintiff was a partnership debt. In the case of Casey v. Brush, (2 Caines, 298,) it was said the rule was too well settled to be shaken, that partners cannot sue each other at law for any thing relating to their partnership concerns, unless there has been a settlement, a balance struck, and an express promise to pay. This doctrine has since been repeatedly recognized by this court. (12 Johns. R. 402. 17 Johns. R. 80. 14 Johns. R. 322. 18 Johns. R. 245.) The same rule prevails in the English courts, (2 T. R. 483, n., 1 Stark. R. 63, Robson v. Curtis,) where Lord Ellenborough says, “ If there had been partnership dealings, and only one item remained unadjusted, the difficulty as to partnership would disappear.” Such is not this case; as the défendant below offered to shew that the plaintiff below was his debtor on an unsettled partnership account.

Judgment reversed ; venire de novo to Albany mayor’s court.