142 N.Y. 316 | NY | 1894
When this case was before us on a previous appeal (
But a very great change has come over those facts, so *319 great that I have examined again the earlier record to see whether I may not have misunderstood or misinterpreted them. That examination shows that the court explicitly found as a fact the appointment of the plaintiff as "the liquidating partner of the partnership," and the defendant's answer denies liability for any overdraft, and alleges a settlement made at the date of the dissolution. But now the vital and fundamental fact upon which our previous opinion stood, which was the appointment and authority of the plaintiff as the exclusive agent for winding up the partnership affairs, has wholly disappeared, and with it has gone the further fact that there was disagreement between the parties immediately upon the dissolution and an antagonism of claims, for now it is found that Gray was not made liquidator, that both parties acted as such, that both have acted faithfully, and that defendant has recognized that there was no settlement at the date of the dissolution by joining in the liquidation and asking credit in its results. How this remarkable and fundamental change in the facts occurred has been the subject of discussion on the argument. The defendant maintains that the evidence has not changed, but only the judgment of the trial court upon it; that the finding on the first trial was right and on this one is wrong, and that the change had its origin in an effort to evade the judgment of this court. I do not deem that criticism just. Looking over the evidence I feel bound to say that there is reasonable explanation of the change, and much in the conduct of the parties which is in accord with the later finding, and that at all events it has such support in the proof as to put it beyond our review, and compel us to accept it as the truth.
It follows that we can no longer treat the action as one by the chosen liquidator, whose right to all the assets has been denied, to re-claim such assets needed for the liquidation, and must regard it simply and wholly as an action by one partner after a dissolution to compel an accounting and adjustment of the partnership affairs. The complaint readily admits of that construction, and since the present findings disclose no other *320 cause of action we must treat it as one for a final accounting. We cannot now say that the cause of action established was one which arose at or near the date of the dissolution. The fact which caused its origin at that date has been eliminated, and in its room no other fact requiring or justifying the intervention of equity is to be found until a much later period.
In Ham v. Gilmore, (
The judgment should be affirmed, with costs.
All concur, except PECKHAM, J., not voting.
Judgment affirmed. *322