19 Barb. 196 | N.Y. Sup. Ct. | 1855
By the Court,
Ho judgment having been entered up, it is objected that the appeal is premature. The demurrer is to a part only of the answer, and leave to amend was given. I had susposed it to be settled that an appeal from an order would lie in such a case. (2 Whitt. Pr. 200, 2d ed.) And in this district, under, the 2d subdivision of § 349 in its present form, I believe we have invariably held that where a demurrer has been sustained or overruled, the appeal in all cases may be as from an order, if judgment has not been actually entered up. King v. Stafford, (5 How. Pr. Rep. 30; S. C., 6 Id. 127,) was an attempt to appeal from the decision of a judge, under § 247; and the reasons given in 6 Howard for the decision, and the case itself may, perhaps, be considered as substantially overruled by the court of appeals in Swarthout v. Curtis,
On the merits, I think the answer shows no counterclaim against the plaintiff arising out of a cause of action on contract existing at the commencement of the suit. (Code, § 150.) The defendant says, that the firm became indebted to him for the purchase of goods, <fec., and for board furnished and expenses and debts paid for the firm, $1000 ; and that the plaintiff is liable to pay one half of this to him, according to the terms and conditions of the copartnership. But he does not state that those terms and conditions were special, or what they were, and he asks for an accounting, and that what shall be found due to him shall be. allowed; and that such part thereof as the plaintiff shall be liable to pay, be set off in this cause. But he does not allege that the plaintiff owes the firm; or that any thing will be due from the plaintiff to the defendant on the first winding up of the copartnership concerns. In this respect, the answer falls short of that in the case of Gage v. Angell, (8 How. Pr. R. 335,) where it was averred, that on a settlement a balance was due from the plaintiff to the defendant. But with all respect for the able judge who decided that cause, and whose opinion contains all that can be said on that side of the question, I think, if this answer had contained such an allegation, it would have still been insufficient; I do not understand that one partner has a demand, debt, or counterclaim against his copartner before or after dissolution, until a final" settlement, where there is no fraud, nor an express agreement, nor any special circumstances. Bach partner has a specific lien on the partnership
Hand, Cady, C. L. Allen and James, Justices.]
The order granted at special term should be reversed; but as this is one of those novel and perplexing questions naturally consequent upon any attempt to change the entire- mode of administering justice, we think the costs had better abide the event of the suit. As this is an appeal from an order, I think the court has discretion as to costs.
Ordered accordingly.