p. 759Leo Stirn, App’lt, v. Hans Hemken et al., Resp’ts.(Supreme Court, General Term, First Department,Headnote
Partnership—Limitation op bight op cbbditob to accounting by pirm.Where a firm is dissolved and a new one, formed by some of its members, ■continues the business, in the absence of evidence that the new firm assumed the obligations of the old firm or reaped any benefits under a contract made by it, an accounting under such contract should only be allowed ■up to the time of the dissolution of the old firm.
Appeal from interlocutory judgment directing an account to be ■made by the defendants to the plaintiff relative to the importation •and sale of goods named in a certain contract made by defendants with the plaintiff in January, 1888.
Charles Strauss, for app’lt; Blumenstiel & Hirsch, for resp’ts.
This action was brought to compel - defendants ■to account under an agreement by which they, under the firm name of Hemken, Slayton & Go., bound themselves to pay commissions on certain goods to be imported and sold. The agreement was for a term of five years, and was dated January 30, 1888. The defendants, having immediately thereafter imported and sold the goods therein mentioned, rendered an account in March, 1888, for plaintiff's share of the profits, and paid him the •amount, informing him at the same time that the firm would discontinue dealing in such goods. Subsequently, and in September, 1889, the firm dissolved by the retirement of Toepken, one of its members, and thereafter the remaining partners formed a new firm
p. 760under the name of Hemlcen & Slayton, and continued the business until 1890, when Slayton retired, and the defendant Hemken thereafter conducted the business in his own name. Upon such facts, the trial judge decided that plaintiff was entitled to an accounting, but limited the date of the accounting to September, 1889, which was the date of the dissolution of the firm with which the contract was made; and it is from such limitation that, this appeal is taken, the appellant contending that he was entitled to have an accounting from each and all of the defendants for the entire period of five years. The difficulty with this contention, however, is that there is no proof in the case that subsequent to. March, 1888, any of the articles mentioned in the contract were imported or sold by the defendants. But, apart from this, we think the trial judge properly limited the account to the date-when the firm was dissolved. The fact that another firm was-organized did not impose upon such firm all the obligations of a former firm with which some of its members may have been connected. Of course,, there are cases which are authority for the position that had the new firm assumed the obligations of the-contract, or if it had been proven that they continued the importation and sale of these goods, thus reaping the benefits under the-contract, some basis might have been laid for an accounting beyond the date of the dissolution of the first firm; but, in the absence of such evidence, we think that the conclusion reached by the trial judge was as favorable to the plaintiff as the facts warranted.
The judgment appealed from should therefore be affirmed, with costs.
O’Brien, Follett and Parker, JJ., concur.