Lawson v. Tyler

90 N.Y.S. 188 | N.Y. App. Div. | 1904

Hatch, J.:

The action is brought for the dissolution of a copartnership, and to compel the defendant to account for certain property claimed to have been appropriated by him in violation of such articles, and for damages claimed to have been sustained on account of the defendant’s breach of the agreement. The copartnership was formed for the purpose of compounding and selling veterinary medicine and supplies under the name of “ Dr. Tyler’s Chemical and Veterinary Supply Company.” A motion was made and granted for the appointment of a receiver of the partnership property. In the order the defendant was required to deliver to the receiver all of the partnership property in 1ns possession, including certain formulas used by the defendant in compounding medicine. From the order thus made and entered the defendant did not appeal.

Although the evidence upon the motion was conflicting as to the demand made by the receiver upon the defendant for the delivery of the property and formulas, yet it was sufficient for the court to find that the demand was made and that the defendant refused to comply therewith. The evidence was also conflicting as to the ability of the defendant to deliver the formulas. He established that the property of which he was possessed, including the formulas, had been destroyed by fire and this was a sufficient answer for a failure to deliver so far as the property of the copartnership was concerned, aside from the formulas. As to them, the learned judges below reach the conclusion, after two exhaustive arguments, that the defendant had it within his power to reproduce and deliver the formulas to the receiver, and we think the evidence submitted sufficient to justify this conclusion. It appeared that the defendant had carried on business for a long time and made use of the formulas in compounding the medicines which the copartnership was established to vend, and that he made up and compounded such medicine without the aid in many instances of the written formula. This would indicate that his memory is retentive enough to reproduce at least to some extent the formulas of which he made use, and he was bound under the order, after the writing had been destroyed, to reproduce them so far as he was able. He makes no claim of inability to reproduce. His sole claim is that they have been destroyed by fire, but this is far from showing that he has not copies or other aids, either in memory or otherwise, from which they can be reproduced. So far, therefore, as these questions of fact are concerned, we think the evidence was sufficient to authorize the conclusion which the court expressed in its order.

It is claimed, however, that there is no authority to compel a delivery of the formulas. Such claim as matter of fact has substantial basis to rest upon. The articles of copartnership, witer alia, provided for the delivery of the formulas to the copartnership for the benefit of those interested therein, and then provided “ all of which are to be returned to him (the defendant) at the dissolution of company.” The complaint avers that the copartnership owes no debts and has no property other than that mentioned in the complaint. The only parties in interest, therefore, in the matter are the persons constituting the copartnership. As between them the defendant by the express terms of the contract became entitled to the possession and control of the formulas upon a dissolution. The plaintiffs are not entitled to their possession for the purposes of this action as against the defendant and there are no other intervening rights which are to be conserved. Whatever damages the plaintiffs have sustained by reason of the defendant’s breach of the articles of copartnership, admitting it to have occurred, would not give to the plaintiffs the possession of the formulas or any interest therein arising out of the copartnership agreement. Such, however, is not the question presented by this motion. The court had the power to appoint a receiver and also to direct delivery of the property to him, including the formulas, and when it made such order, so long as it stood, the defendant was bound to obey it. If he wished to contest the right of the receiver to the possession of the formulas he should have appealed from the order or moved to vacate it. Not having done so he is bound by its terms and cannot now claim that he is not bound to obey it. (People ex rel. Day v. Bergen, 53 N. Y. 404; Higbie v. Edgarton, 3 Paige, 253.) This being his status he was properly adjudged in contempt and cannot now be heard to urge considerations which might have defeated the direction to deliver the formulas under the receivership order.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.