Travis v. Stewart — 61 N.Y.S. 492

Majority

p. 492

(29 Misc. Rep. 605.)

TRAVIS et al. v. STEWART.

(City Court of New York, General Term.

November 16, 1899.)

Headnote

Partnership—Action—Jurisdiction.

Though the complaint alleges that plaintiff and defendant were partners in the transaction in which defendant received a commission, an action at law will lie for half .thereof, it being alleged to be a certain sum, and no equitable relief being sought.

p. 493

Appeal from trial term.

Action by John L. Travis and another against David Stewart. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. Affirmed.

Argued before FITZSIMONS, C. J., and MCCARTHY and CONLAN, JJ.

Alexander & Ash, for appellant.

John Henry Hull, for respondents.

This is an appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial. The .action was brought to recover one-half of a commission received by the defendant upon his sale of certain real estate in the city of New York under an alleged agreement to divide the same. It is •stated by the defendant that the sole issue upon the trial was upon the agreement alleged in the complaint. The fact that the defendant had made the sale and received the commission was not •disputed. The complaint alleged a co-partnership between the plaintiffs and defendant so far as regards the transaction in dispute, and asks for an accounting, and a judgment in a specified ■sum; and at the opening of the case a motion was made to dismiss the complaint on the ground that the court was without jurisdiction of the subject-matter of the action in that form, but this question was disposed of adversely to the defendant upon the statement of counsel that no equitable relief was sought, and the complaint in question demanded judgment in a specified sum. This motion was renewed at the close of all testimony, and denied. In this, we think, there was no error, and the defendant does not discuss this question in its brief. The only other question, namely, "the agreement to divide the commission, and whether or not it was made as alleged, was submitted to the jury in a charge which was ■eminently fair to the defendant; and the jury found in favor of the plaintiff for the amount claimed, and interest, and no exception was taken to any portion of the charge.

We do not find in the record any reason for disturbing the verdict of the jury, and the judgment and order appealed from should be affirmed, with costs. All concur.