Hamilton v. Piza

Headnote

Where the judgment demanded in a complaint is for an amount which must be determined after an accounting, the cause is triable at special term without a jury.

Appeal from special term, New York county.

Action by William H. Hamilton, as assignee for the benefit of creditors of Washington Belt, Elliot L. Butler, and,

Theophilus Jowett, partners trading under the firm name of Belt, Butler & Co., against Joshua Samuel Piza, for an accounting under a contract between the parties, and to recover judgment for such sum as might be found due on the account. From an order striking the cause from the special term calander, plaintiff appeals.

The complaint aHeged that on the 19th day of February, 1893, plaintiff’s assignors, composing the firm of Belt, Butler Co., entered into a certain agreement with defendant to form a corporation to be known as the New York Fur-Cut■ting Company, which company was duly organized, and proceeded to carry on its business; that plaintiff’s assignors, pursuant to the agreement, furnished all the money necessary for the corporation to carry on its business; that under the agreement, defendant, at the expiration of two years from the date thereof, was to take by assignment two-fifths of the debts of the company which might then be existing in favor of Belt, Butler, & Co., reimbursing them to that extent ; that the New York Fur-Cutting Company continued to carry on its business until January, 1895, when its factory was destroyed by fire; that on May 3, 1895, defendant procured an order of court to show cause why a receiver for the New York Fur-Cutting Company should not be appointed. that thereafter Samuel W. Milbank was appointed receiver; that plaintiff caused a statement to be prepared of the moneys furnished by Belt, Butler & Co., pursuant to the terms of the agreement showing that the amount of the debts of the New York Fur-Cutting Company then existing in favor of Belt, Butler & Co. amounted to $195,758.70, and that plaintiff, on March 3, 1896, presented a copy of such ■statement to defendant, and presented to him an assignment in writing of two-fifths of said debts, with a request that he would accept the same, and pay plaintiff two-fifths of said .sum, which he refused to do, and that the firm of Belt, Butler & Co., and plaintiff, as their receiver, have duly performed aU the terms and conditions of the agreement, and that defendant has failed to perform his part of said agreement. The complaint demanded judgment against defendant: “(1) That an account be taken and stated of the amount furnished by plaintiff’s assignors by loan in amount current during the time mentioned in the agreement hereto annexed, marked ‘Exhibit I’, for the proper management of the business of said New York Fur-Cutting Company, and that the .amount of the debts of the New York Fur-Cutting Company which existed in favor of plaintiff or his assignors on February 19, 1896, be determined. (2) That the amount of the •debts due by- the New York Fur-Cutting Company on the said February 19, 1896, on the responsibility of the defend

ant, be determined. (3) That the amount of two-fifths of the debts of the said New York Fur-Cutting Company which existed in favor of the plaintiff or his assignors on February 19, 1896, after deducting any debts due by the said company on the responsibility of the defendant, be determined. (4) That the defendant be directed-to pay to the plaintiff the amount so determined to be due by him, with interest thereon from February 19, 1896, upon the assignmen t to him of twofiftlis of the debts of the said New York Fur-Cutting Company which existed .in favor of the plaintiff or his assignors on the said February 19, 1S96, together with a two fifths interest in the securities, collaterals, and other rights or liens which plaintiff or his assignors may have to secure the said debts of the said New York Fur-Cutting Company to plaintiff or his assignors. (5) That plaintiff have judgment against the defendant for the amount so determined to be due plaintiff by the defendant with interest and the costs of this action.”