| N.Y. App. Div. | Jan 10, 1923
This is an appeal from an order of the Surrogate’s Court of the county of Otsego made July 26, 1922.
The order determined a question of fact, i. e., whether or not the petitioner and Delbert R. Decker, deceased, were copartners in the cattle business.
The only witnesses produced were those sworn by the petitioner. It appears that on July 1, 1921, the petitioner gave a check to the intestate for $500, which was paid; on July ninth a check for $500, which was paid; on July twelfth a check for $200, which was paid; and that in the month of July the petitioner borrowed $200 of Delmer Husted and handed the money to the intestate.
It further appears that the deceased and the petitioner visited down around Otego and examined some cattle at two places and that the petitioner made notations regarding them; that Mrs. Decker, the administratrix, noticed her husband and the petitioner looking over accounts and heard them talking about cattle. Added to this undisputed testimony is not only the testimony of Mrs. Van Burén, the petitioner’s wife, and Charles Dailey, the partner of the petitioner, that Decker had admitted he and Van Burén were partners, but that of Delmer Husted, who seems to be a disinterested witness, who swears that Decker had described himself as a partner of Van Burén in the “cow business.”
The only evidence at war with the foregoing is that of Mrs. Decker that her husband had been in the cow business for nineteen years and that she never heard the word “ partners ” mentioned by her husband. If there were an agreement for a joint enterprise between Decker and Van Burén it commenced on or about July 1, 1921, and had ended by the death of Decker October second of the same year.
There is no record of any repayment by Decker of any moneys he received from Van Burén on or after July 1, 1921, nor is there any evidence that at any time prior to Decker’s death Van Burén was in debt to Decker.
The presumption that the checks were given in payment of a debt is destroyed by the attempt of Van Burén to prove that they were issued in the joint enterprise of the “cow business.” (Bruyn v. Russell, 60 Hun, 283; Matter of Mount Vernon Trust Co., 175 App. Div. 353.)
We think the evidence preponderates largely in favor of the petitioner as to his business relationship with the deceased.
While such a determination may operate disastrously as to the general creditors of Decker, it will not operate in that maimer against any creditors whose claims are based upon the sale of cows to Decker. They will be at liberty to collect such claims out of such partnership.
The part thereof which the estate may lay claim to will be at least half of the alleged profits. They will be available to general creditors.
Matter of Mondshain was ,decided on February 21, 1919, and at that time the equitable power of the court was limited as above. By section 40 of the Surrogate’s Court Act, as amended by chapter 439 of the Laws of 1921, the limitation or restraint as above described was removed. The parties in the case at bar before the court are the creditors of Decker and the petitioner. The fund whether it belonged to Decker or to the partnership of Deckér & Van Burén is also in court.
The court having jurisdiction both of the parties and of the fund has power to make a determination of the petitioner’s claim to any partnership property whose title is involved in the proceeding in the Surrogate’s Court.
The order should be reversed, with costs.
H. T. Kellogg, Acting P. J., Kilby, Van Kirk and Hinman, JJ., concur.
Order reversed on the law and facts, with ten dollars costs and disbursements, and matter remitted to the surrogate for further hearing.