Donnelly v. McArdle, 105 N.Y.S. 331

Donnelly v. McArdle

105 N.Y.S. 331 | N.Y. App. Div. | 1907

Per Curiam:

On a former trial the plaintiff’s complaint was dismissed, and on appeal to this court (86 App. Div. 33) the judgment was reversed as against *872the weight of evidence. On the second-trial the facts adduced .by the defendant .did not materially vary from.those Which he proved upon the first trial. ' The . plaintiff not only proved all that-he was able to establish upon the first trial, hut added new facts corroborating his contention. Amongst them was the fact that nearly a year after the alleged absolute dissolution.of-the. copartnership an action was brought by the plaintiff and defendant as copartners, for goods sold, in which the complaint alleged the continued existence of the copartnership." The complaint in that action was verified by. this plaintiff, hut. in the same action the defendant signed a bond of indemnity as one- of the plaintiffs therein, and. presumptively he knew the form oi the action and its object. In addition, certain facts favorable to'tlie plaintiff were proven by the witness Courtney, whose testimony was. not given upon the former-trial. We think the evidence did not warrant-a dismissal of the complaint by. the trial court,', and that upon the facts established before him he should have decreed that the assignment given by the ' plaintiff to defendant was as security only, and should have ordered an accounting of the partnership business. Óoocededly, the partnership had existed; and if the assignment by the plaintiff to defendant was. not .absolute, but -as security for defendant’s advances to the firm only,. plaintiff still had an interest after those advances were, paid, in any surplus assets .of the firm. There was prima facie proof that such surplus assets existed. The judgment dismissing the complaint must be reversed both on the law and the facts, and ,a hew trial granted with costs to the appellant to abide the event. Present — Patterson, P. J,„ McLaughlin, Laughlin, Houghton and Lambert, JJ. Judgment reversed and new trial granted, with costs to appellant to abide event.