Barclay v. Barclay — 162 A.D. 557

Majority

p. 557

Clara S. Barclay, as Trustee under the Last Will and Testament of William O. Barclay, Deceased, Respondent, v. Reginald G. Barclay, Appellant.

First Department,

May 15, 1914.

Headnote

Pleading — suit on partnership agreement entitling plaintiff to increased profits on withdrawal of partner — date of termination of partnership — evidentiary facts stricken from complaint.

A plaintiff, suing to recover on a contract made between her testator and the defendant, who, with another, B., had formerly been partners, and which entitled her to a percentage of profits until such time as B. should cease to be a member of the firm, upon which event her percentage of the profits should be increased, and who asserts that the date upon which B. withdrew from the partnership was concealed from her, need only allege that he ceased to be a member of the firm at some time prior to a specified date; or, if unable to state the exact date, need only make such allegation upon information and belief.

She should not allege facts showing why she is unable to give the exact date of the termination of the partnership with B., or other evidentiary facts, and they will be stricken out on motion under section 545 of the Code of Civil Procedure.

Appeal by the defendant, Reginald G. Barclay, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of April, 1914, denying defendant’s motion to strike out parts of the complaint.

Chester A. Jayne, for the appellant.

R. H. Overbaugh, for the respondent.

This action is brought to recover the amount of "the profits to which the plaintiff claims to be entitled under a certain instrument in writing, made between her testator and the defendant on August 1, 1900, by which, among other things, it was provided that upon the death of either of the. parties the survivor should have the exclusive right to use the half interest of the deceased partner in the good will and firm name of Barclay & Co., and in all trade marks, copyrights, labels, etc., upon condition that the survivor should pay the legal repre

p. 558

sentative of the deceased partner, each year, as rental for the use of such half interest, a sum equal to twenty-seven and one-half per cent of the annual net profits of the business of Barclay & Oo., until such time as Alexander Barrie should cease to be a member of said firm, upon the happening.of which contingency the rental should be thirty-three and one-third per cent instead of said twenty-seven and one-half per cent of the profits of the firm. The complaint sets forth that said twenty-seven and one-half per cent was duly paid to the plaintiff under the terms of the agreement until December 31, 1908. The agreement of partnership, by its terms, was made subject to' terminable copartnership articles theretofore made between the same parties and Alexander Barrie. By said last named articles the copartnership with Barrie was to continue until December 31, 1912. It is the contention of the plaintiff that, as a matter of fact, said copartnership with Barrie terminated a long time prior to December 31, 1912, but that the exact date of such termination is unknown to her, and she seeks to recover by this action the difference between the twenty-seven and one-half per cent of the profits payable to her while Barrie remained a member of the firm, and the thirty-three and one-third per cent of the profits payable to her when Barrie ceased to be a member of the firm, for the period from April 1, 1909, to December 31, 1912, amounting to $58,000.

The matter contained in the complaint to which objection is made consists of a recital of facts which apparently she sets forth in order' to show why she is unable to give the exact date of the termination of the partnership with Barrie, and to demonstrate that the defendant and said Barrie, when they adjusted and settled their business affairs in connection with said copartnership, and dissolved the same, purposely suppressed and failed to disclose the date as of which their settlement was made, so that it might appear that the partnership with Barrie continued in existence down to its expiration by lapse of time, although in fact under their settlement it was terminated as of an earlier date, as shown'by the amount of profits which Barrie received upon .such settlement. In order to demonstrate the difficulty which she has had in fixing the date when such partnership was actually dissolved, she has alleged the facts as to

p. 559

the effort of the defendant to terminate said partnership with Barrie as of April 1, 1909, and the litigation which followed to determine the defendant’s right to give such notice of termination. She has also set forth various facts relative to the settlement between Barrie and the defendant. None of these allegations has any place in the complaint. They are all evidentiary facts, and the proper subject of a motion to strike out pursuant to provisions of section 545 of the Code of Civil Procedure. The ultimate fact, and the sole fact, which plaintiff is required to set forth in her complaint, is that Alexander Barrie ceased to be a member of the firm of Barclay & Co. at some time prior to December 31, 1912, and when she is unable, for any reason, to state the exact date of such termination, she is simply required to allege, as she has in the parts of the pleading to which no exception is taken, “ upon information and belief that said copartnership ceased to exist long prior to December 31, 1912, the exact date of termination not being known to this plaintiff.” There is also another allegation that, “ by the terms of the copartnership agreement between defendant and said Barrie, said copartnership would have continued to December 31, 1912, but actually was terminated long prior to that date.” With these averments in the complaint she is fully protected in her right to make proof of the date when in fact Barrie retired from the firm. The rest of the matter pleaded has no proper place in the complaint, and the order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion to strike out the remaining part of the complaint objected to, and indicated in italics in the complaint as printed in the case on appeal, will be granted, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.

Order so far as appealed from reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.