Butler v. Dinan — 47 N.Y. St. Rep. 363

Majority

p. 363

David Butler, Resp’t, v. Thomas Dinan, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Monet paid—Partnership—Statute of frauds.

While a paroi agreement to take a person in partnership for ten years is void under the statute, this will not give such person a right to reclaim his advances made under the agreement if as matter of fact the partnership is entered into or if the other party is willing to comply with it; but where he refuses or neglects to do so, an action to rescind the agreement and recover back the advances as money paid may be maintained.

Appeal from judgment in favor of plaintiff, entered on the decision of the court without a jury.

Calvin Frost, for app’lt; William McCauley, for resp't.

—This is an appeal from a judgment entered on the decision of the court without a jury. The action was to recover moneys advanced to the defendant.

The point in issue between the parties is narrow. That the moneys sued for were advanced to the defendant is conceded. Both parties agree that the moneys were paid to defendant in contemplation of a partnership to manufacture brick. The plaintiff contends that the agreement was never consummated and that the defendant refused to receive him into the business ; the defendant contends that the parties became and are partners, and that, hence, plaintiff’s only right is to a dissolution and an accounting. .The partnership term was to be ten years. No writing was executed by the parties. This rendered the agreement void. Wahl v. Barnum, 116 N. Y., 87 ; 26 St. Rep., 457 .

We agree, however, with the counsel for defendant that this did not give the plaintiff the right to reclaim his advances if, as a matter of fact, the partnership was entered into, or if the defendant was willing to comply with the agreement and take the plaintiff into partnership with him. But the trial court found, as matters of fact, that the agreement was inchoate and executory; that the parties did not become partners, and that, the defendant refused or neglected to give the plaintiff an interest in the business. We think these findings are well justified by the evidence. Upon the defendant’s default, the plaintiff might have insisted upon his interest in the business and property of the partnership business, and had the defendant declared a trustee to the extent of that interest. • But he was not confined to that remedy. He could elect to rescind the agreement and recover the advances

p. 364

made under it as money paid. This action is, therefore, properly-brought on the facts proven.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.