Jamer v. Jacobs — 54 N.Y. St. Rep. 85

Majority

p. 85

Jacob Jamer, App’lt, v. Emma E. Jacobs et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Partnership—Accounting—Apparent loss op assets.

At the outset of a business the representative of defendants in the firm kept the books, but as the business grew he ceased to do so, and the books were kept by subordinates subject to the orders of all the partners. Held,

p. 86

that it could not he claimed that defendants were responsible for an apparent loss of assets, due to faulty bookkeeping.

2. Same.

A failure to keep a “ suspense account ” for thirteen years, though it might well end in an apparent deficiency of assets, does not indicate any wrongful disposition of the firm property.

Appeal from judgment in favor of defendants, entered upon the report of a referee, in an action for an accounting of the affairs of a partnership upon a voluntary dissolution.

A. J. Perry, for app’lt; Stephen B. Jacobs, for resp’ts.

The action is brought to settle the accounts of a co-partnership, and also seeks to charge upon defendants an apparent deficiency of assets.

The referee declined to hold either partner responsible for such deficiency, which he found to be rather apparent than real, and due to a faulty system of bookkeeping, and decided that the plaintiff, who was the liquidating partner, was indebted to the defendants upon a settlement of the accounts.

We have examined the grounds of both these results, and find them sustained by the evidence.

The appellant claims' that defendants were especially charged with the duty of keeping the books, and should be held responsible if any assets are missing.

We do not find them to have assumed such responsibility.

Prom 1872 to 1874, at the outset of the business, it seems that defendants’ representative in the firm did in fact keep the books; but, as the business grew his attention was given to more active duties, and the accounts were kept by various subordinates, at least four having been thus employed, subject to the orders of all the partners. Nor is it clear that had defendants kept the books they would be held to make good any apparent loss. We also find that the evidence sustains the finding that the books were so kept as truthfully to represent the transactions.

The failure to keep a “ suspense account ” during thirteen (13) years, though it might well at the end of that time result in apparent deficiency of assets, did not indicate any wrongful disposition of the firm property, which the referee correctly held was not established.

The proof sustains the report as to the balance found owing by the plaintiff. There was no dispute that the property was divided at the dissolution, $18,854.21 to plaintiff, and $14,793.30 to defendants, by which plaintiff became chargeable with $2,030.45.

Nor is there any question that plaintiff as liquidating partner received $45,817.32 cash assets.

He is given credit for $22,825, paid out in settlement of the firm affairs, leaving him chargeable with $22,992.30, of which one-half belonged to defendants. He is credited with paying $9,157.95 of this amount to defendants. It is not suggested that he made any further payments, and the balance found against him is justified.

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For a large amount of the payments credited to plaintiff no vouchers were produced, and it is not easy to see how he was entitled to be allowed for the payments.

The referee was equally indulgent to plaintiff in respect to interest The affairs were liquidated, and defendants should have been paid their shares in July, 1886, yet interest was only allowed from January, 1887.

There are no exceptions to evidence which have injured plaintiff, and the judgment is affirmed, with costs.

Barnard, P. J., and Dxkhan, J., concur.