Hyperlawhypertext legal database W. D. Wilson Printing Ink Co. v. Bowker 42 N.Y. St. Rep. 34

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W. D. Wilson Printing Ink Co. v. Bowker

42 N.Y. St. Rep. 34 Court General Term, Decision date 1891-12-07 English

Delivered by Daly, Ch. J.

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Majority

p. 34
The W. D. Wilson Printing Ink Co., Limited, Resp’t, v. Richard R. Bowker, Impl’d, App’lt.
(New York Common Pleas,
General Term,
Filed December 7, 1891.)

Headnote

Partnership—What will not constitute.
Defendant leased certain printing presses to his co-defendant under ana agreement by which he was to receive therefor a certain percentage on the cost and for wear and tear, actual insurance and half the net profits on the same. He was not to take part in the business or receive any share of the-profits of the business not earned by the use of these machines. Held, that his percentages and profits were rent for the machines and did not. constitute him a partner with the co-defendant.
Motion for leave to go to the court of' appeals.
Ph. Carpenter, for motion; Parsons, Shepard & Ogden, opposed.

The question in this case does not require submission to the court of appeals in order to settle the law. What was required was the application tó the facts before the general term of the principles already enunciated in many cases before-the court of last resort. This was done in a careful opinion, in which all the judges concurred. 39 St. Rep., 690 .

It was sought in the action to hold the defendant Bowker liable-as a partner because he entered into an agreement to let to his co-defendant (who was engaged in the printing business) two cylinder presses “ at the rate of six per cent interest on actual cost, with ten per cent on the same for wear and tear, actual insurance, and also half profit on the same, after deducting rent, labor,, ink and other necessary expenses.” It was not shown that Bowker was to take any part in the conduct or prosecution of the business, nor to have any share of the profits not earned by the use of his machines. His percentages and share of the profits were rent for-his presses. They were compensation such as might have been stipulated for the loan of specified sums of money or for the rendition of specified services. In the latter cases the fact of such stipulation alone would not constitute a partnership. The fact that the share of profits here was compensation for the hire of á chattel makes no difference in principle.

The motion for leave to appeal to the court of appeals should, be denied, without ¿osts.

Bischoff, J., concurs.