36 N.Y.S. 530 | N.Y. Sup. Ct. | 1895
We are unable to adopt the conclusion reached by the referee on the only question presented by this appeal. That question is between a surviving partner and the representatives of a deceased partner on the settlement of the copartnership accounts. The evidence shows that the deceased partner, Mr. Robinson, Sr., declared his purpose of having the balance standing to the debit of one of his partners, viz. his son, transferred to his own account, in consideration of the unprofitable condition of the business and the faithful attention that son had given it. The referee finds (sixth finding) that Mr. Robinson, Sr., with the intention to cancel his son’s indebtedness, instructed his bookkeeper, Mr. Banger, to transfer his son’s indebtedness to the father’s account, and that Mr. Banger (who died before the hearing of the cause) made a memorandum which was shown to Mr. Robinson, Jr., and which was made pursuant to the instructions the father had given. That finding is justified by the evidence. Regarding the transaction as a gift from father to son, as both parties have presented it, it was not of that incomplete character the referee held it to be. The intention to make the gift had been formed and declared. The subject of it was incapable of actual physical delivery. Steps were taken to effectuate it, and directions given. All that was omitted was a bookkeeper’s ledger entry, and positive instructions had been given him to make it. He did make a memorandum of those instructions, which he placed in the ledger, but did not actually make an inscription in the accounts before Mr. Robinson, Sr., died, which event happened shortly after
VAN BRUNT, P. J., concurs. PARKER, J., dissents.