Hunter v. Booth

82 N.Y.S. 1000 | N.Y. App. Div. | 1903

Willard Bartlett, J.:

The plaintiff sued the defendants, as copartners, to recover sixty-eight dollars principal and eight dollars and fifty cents interest upon an account stated. The answer contained a general denial, and further alleged, by way of counterclaim and offset, that “ on or about the 5th and 10th days of May, 1898, defendants secured for plaintiff the business and custom of two persons by the name of John Johnson and Hugh Bracken, for which plaintiff agreed to pay defendants the sum of fifty dollars.” The answer also offered to allow judgment to be taken against the defendants for eighteen dollars, with interest and costs.

On the trial the plaintiff’s claim of sixty-eight dollars upon the ' account stated was admitted, and he proved the interest to be eight dollars and fifty cents. Proof was then offered in support of thé counterclaim, and judgment was rendered sustaining it for the full amount and thus allowing the plaintiff to recover only eighteen dollars instead of seventy-six dollars and eighty cents.

We are of opinion that the evidence was insufficient to establish the counterclaim as pleaded. The defendants were sued jointly, and in the counterclaim they set up the rendition of a joint service, for which they alleged the plaintiff agreed to pay them both. This was necessary in order to make the counterclaim good in form. But the proof did not sustain the averment.- It tended -to show, not an agreement by the plaintiff to pay the defendants Louisa E. Booth and Arthur W. Booth for securing the two customers mentioned in the answer, but an agreement-to pay one of the defendants, Arthur W. Booth, for such service. This individual claim in behalf of one of the partners could not be set off against the account stated, which was a claim against both partners, constituting their joint debt. (Pinckney v. Keyler, 4 E. D. Smith, 469; Spofford v. Rowan, 124 N. Y. 108.) It was, therefore, an error to uphold the counterclaim to any extent, and for this error we are compelled to reverse the judgment.

Goodrich, P. J., Hirsohberg, Jenks and Hooker, JJ., concurred.

.Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.