33 Misc. 89 | N.Y. App. Term. | 1900
The parties to this action entered into a contract on the 1st day of May, 1900, by which, after reciting that the defendant was the owner of a business for operating a gymnasium and school of physical culture, and that the plaintiff was desirous of becoming associated with him as a copartner in the ownership and management of said business, it was agreed that the plaintiff should immediately, upon the execution of the paper, pay to the defendant the sum of $250, and that the defendant, during the continuance of the agreement, should “ treat the said party of the second part,” the plaintiff, as his copartner in “ the ownership and management of the said business, and shall and will accord to him all the rights and privileges of a copartner in the same business; but it is expressly understood and agreed that the said party of the second part (the plaintiff) shall be called upon in no
In the case at bar the plaintiff had no interest in the assets of the copartnerhip, nor was he, as between himself and his copartner, chargeable with any of the debts of the concern. Upon the termination of the partnership in a manner provided in the agreement, what the plaintiff was to receive, and all that he was to receive by the terms of such agreement, was the sum of $250, and his unpaid half of the net profits. If the plaintiff were suing here to recover a half of the net profits as actually earned, it is conceded that an accounting would be necessary, and that his action should then have been brought in a court of equity. But such is not the case. He is suing, so far as profits are concerned, only for the minimum guaranteed sum of $20 a week, the amount which the defendant bound himself to pay in any event, whether profits were actually earned or not. We have here, then, an agreement which settles the exact minimum sum which the plaintiff was to receive, upon the expiration of the copartnership, which was to be subject to no diminution, and the case, therefore, is one which comes within the class of cases above mentioned, where an action at law may be brought by one partner against the other. I am of opinion, therefore, that the court erred in dismiss
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.
Giegebich and O'”Gorman, JJ., concur.
Judgment reversed and a new trial ordered, with costs to appellant to abide event.