Williams v. Lindblom

22 N.Y.S. 678, 68 Hun 173, 75 N.Y. Sup. Ct. 173, 52 N.Y. St. Rep. 78

• Court: New York Supreme Court
• Decided: March 17, 1893
• Status: Published

Opinion

FOLLETT, J.

The answer of Lindblom is so defective that, had the decision turned upon the state of the issues presented by the pleadings, the defect might have proved fatal to the defendant. The answer “denies the allegations contained in said complaint from the middle of the ninth folio down to the words ‘any one therefor,’ near the end of the twelfth folio of said complaint, except,” etc. The folios referred to are evidently those of the original complaint, which are not identical with those of the complaint as printed in the record, and it is impossible to ascertain what is denied and what admitted. This vicious mode of pleading has been several times condemned in reported cases. Pleadings are to be construed strictly against the pleader, and, if it cannot be determined what has been denied, none of the allegations of the complaint will be deemed to have been controverted.

An action at law cannot be maintained by one partner against another to recover a sum of money arising.out of the partnership transactions until a final accounting has been had, and the amount due ascertained. The case at bar is in equity, for an accounting between several partners, but by the decision of the referee and the judgment entered thereon it was, in effect, turned into an action at law, and a judgment for a definite sum of money entered in favor of one partner and against two others, without determining the state of the accounts between the partners. The rule for taking a partnership account in an action like this is well stated by Mr. Lindley in his learned work on Partnerships: “(1) Ascertain how the firm stands as regards nonpartners. (2) Ascertain what each partner is entitled to charge in account'with his copartners, remembering) in the words of Lord Hardwicke, that ‘each is entitled to be allowed as against the other everything he has advanced or brought in as a partnership transaction, and to charge the other in the account with what that other has not brought in, or has taken out more than he ought.’ (3) Apportion between the partners all profits to be divided or losses to be made good; and ascertain what, if anything, each partner must pay to the others, in order that all cross claims may be settled.” 2 Lindl. Partn. (3d Eng. Ed.) 1031. This rule has been approved by several cases in this state. Neudecker v. Kohlberg, 3 Daly, 407; Rhiner v. Sweet, 2 Lans. 386; Butler v. Ballard, 43 N. Y. Super. Ct. R. 191; Sweet v. Morrison, 103 N. Y. 235, 8 N. E. Rep. 396; McCall v. Moschowitz, 14 Daly, 16. Such is the rule in New Hampshire (Raymond v. Came, 45 N. H. 201) and in Massachusetts, (Paine v. Paine, 15 Gray, 299.) The theory of this action was disregarded by the learned referee, whose decision and the judgment entered thereon violate the rule that judgments must be secundum allegata et probata.

It was urged on the argument that the defendant did not, by an appropriate request, ask the referee to state the accounts between the partners. This was unnecessary, for counsel had the right to assume that a judgment appropriate to the form of the action would be rendered, and it was no more necessary to make a specific request than it would be, in an action for specific performance, to request that a judgment for money be not given, but that specific relief be awarded or denied. The exception taken by the appellant to the conclusions of law are sufficient to raise the questions here considered. In accountings between partners it is not usual to award costs until the final judgment is entered, when they may be paid out of the fund or charged against the delinquent partner; so the question of costs will be reserved until the final determination. The judgment should be reversed, and a new trial granted, before a new referee to be appointed by this court, with costs to appellant to abide the final award of costs. All concur.