Davis v. Davis — 32 N.Y. St. Rep. 1058

Majority

p. 1058

Benjamin F. Davis, Resp’t, v. Jemima S. Davis et al., App’lts.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Partnership — Right to possession of books.

A partnership between plaintiff and his father was dissolved and the-latter took the books. In an action for their recovery after the father’s death, defendants claimed that the father was to pay the debts of the old firm and collect the debts due it. Held, that as it was doubtful if plaintiff has any title to the books they should not be delivered to him; but should be placed where all parties can have access to them.

Appeal from order granting plaintiff’s motion for the delivery of certain books alleged to have been in the possession of Gilbert T. Davis at his decease.

Plaintiff alleged that he and G. T. Davis, his father, were in partnership; that such partnership was dissolved by consent and

p. 1059

his father permitted to take the books for the purpose of collecting the debts due the firm; that he so collected a large amount; that defendants have possession of the books and refuse to deliver them to plaintiff or to allow him to see them.

Defendants allege that the partnership was dissolved by the .sale of the father’s interest to one Hawkins; that the father took the books and was to pay the debts and collect the accounts; that plaintiff made no claim to an unsettled interest in the partnership; that in 1885 plaintiff made an assignment for creditors to his father, in which he made no mention of any interest in said firm, and was a borrower of his father in 1886 and 1887.

The court granted the motion and directed the delivery of the books.

Henry 0. Griffin, for app’lts; Hdward T. Lovali, for resp’t

It is very doubtful if the plaintiff has any right, title or interest in the books in question. In any view, however, he ought not to have the absolute and unrestricted custody of them. As matter of law the interest in the accounts passed to Gr. T. Davis in his lifetime in trust to pay debts, and the plaintiff only retained an equitable interest therein.

We think it was proper to give the plaintiff access to the books; .at the same time also the defendant should have been allowed to have the books where they could be used in furtherance of the trust and in settlement of the estate of Gr. T. Davis, deceased.

The order should be so modified as to have them placed in the custody of some officer or person where both parties can have access to them at all reasonable times.

Ho costs to either party.

Barnard, P. J., concurs.