100 N.Y.S. 49 | N.Y. App. Div. | 1906
The principal contention of the appellant is that lie should have been allowed the salary. It is urged that he continued the business in good faith; that he did not deny that he was continuing it for the benefit of the estate of the deceased partner, as well as for himself, and that as he made a substantial profit in which the estate of his deceased partner shares equally, it is but equitable that he should be allowed compensation for his services. Hpon the facts presented, there is no room for questioning the appellant’s good faith in continuing the business and it would seem equitable and right that he should be compensated for his services which resulted in a profit and enables the plaintiff and others interested in the estate of her father to receive a substantial distributive share. The court, however, is without authority to compel the plaintiff to do equity in this particular case without disregarding a wholesome rule which it is essential to preserve inviolate.
I am of opinion, however, that his account should not have been
. The compound interest on the note was paid voluntarily ; there was no mistake of fact. If a mistake at all, it was merely a mistake
The remaining claim is that the appellant should have received credit for the checks. His books of account were inaccurate, and it was difficult to ascertain the true state of the accounts. While the propriety of a disbursement, if made in the business, could not, as already shown, be considered, the burden was upon the appellant to show that the disbursements evidenced by these checks wei'e made in the business. That he has failed to do and his account was, therefore, properly surcharged therewith.
It follows, therefore, that the judgment should be modified by-deducting the amount charged for interest on the amounts withdrawn for salary and interest thereon, and as so modified affirmed, without costs.
O’Brien, P. J., Patterson, McLaughlin and Clarke, JJ., concurred.
Judgment modified as directed in opinion, and as modified,, affirmed, without costs. Settle order on notice.
See Code Civ. Proc. § 2730.- [Rep.
See 2 Kent Com. (12th ed.) *231, note; Id. (14th ed.) *231, note.— [Ref.
See Collyer Part (5th Am. ed.) § 336, note 2.— [Rep.