Majority
p. 304City Court. Trial Term March, 1886. LOBENTHAL against KELLER.
Headnote
Neither an action nor a counter-claim can be maintained at law by one partner against another growing out of an unsettled partnership relation. The remedy is in equity.The defendant’s claim for contribution- is valid to the extent, of. $150 and interest, making together $168; but it is not the proper subject of counterclaim, because it grows out of an unsettled partnership
p. 305
relation existing between Mm and the plaintiff’s assignor. The defendant has a suit now pending for an accounting, m wMch he may appropriately charge the above $168 against Ms partner in the adjustment of the accounts. The following authorities sustain these conclusions: Waterman on Set-off, 178, 179; Barbour on Set-off, 90; Story on Part. §§ 221-223; 3 Hill, 188 ; 27 Barb. 554 ; Story Eg. §§ 664, 665; 14 Johns. 318 ; 1 Hall, 180 ; 6 Barb. 537 ; 23 Id. 184; 4 N. Y. 186 ; 43 Id. 598; 54 Barb. 223 ; 1 Duer, 667 . A counter-claim, even if used merely as a set-off, is in the nature of a cross action, which cannot be maintained at law, by one partner against another, until there has been a settlement had and balance struck. The theory of the equity smt is that because the partners have not agreed upon a balance the court should, after the accounting, declare one.
The plaintiff, is, therefore, entitled to judgment for $384.04 with costs.
Cases cited
- Murray v. Bogert & Kneeland 14 Johns. 318 p. 305
- Pattison v. Blanchard 6 Barb. 537 p. 305
- Smith v. Small 54 Barb. 223 p. 305