Murray v. Bogert & Kneeland

| N.Y. Sup. Ct. | Aug 15, 1817

Thompson, Ch. J.,

delivered the opinion of the court. The motion to set aside the nonsuit must be denied. There is no principle that can be assumed, under the facts in the case, which will sustain the action. It cannot be supported on the principie of contribution. The defendants were not parties to the judgment which Forbes recovered against the plaintiff and others ; nor could they have been made parties. The contract upon which Forbes recovered that judgment was made by him, with Murray, Kane, Mumford, & Mansfield. But whether the defendants could have been connected with them in that suit or not is immaterial as it respects the question of contribution. They were not made parties, nor did the defendants in that suit plead in abatement, that they ought to have been made parties. That judgment, therefore, shows no privity, or joint responsibility between the defendants in that judgment and the defendants in this suit; nor do the facts in this case make out a partnership. Admitting that the transaction as between Murray, Kane, Mumford &? Mansfield, was a partnership concern, Mansfield could not, by selling out a portion of interest to Bogert 8c Kneeland, make them partners against the will and consent of the other parties. This would be a very dangerous principle to admit into the doctrine of partnership.

Admitting, however, that the defendants were, by the purchase made from Mansfield, constituted partners in the transaction, another insuperable difficulty arises against maintaining the action at law ; it is a principle too well settled to be shaken, that partners cannot sue each other at common law. There is nothing-in the case showing a settlement of the partnership accounts, and balance struck, and a promise by the defendants to pay, so as to maintain the action on that ground. In whatever point of view, therefore, the case is considered, the plaintiff was properly nonsuited, and the present motion must be denied.

Motion denied(a.)

(a) Vid. Cowel v. Edwards, (2 Bos. & Pull. 268.) Deering v. Winchelsea and others, (2 Bos. & Pull, 270.) Wright v. Hunter, (l East, 20.) Peck v, Ellis, 2 Johns. Ch. Cas. (sub prelo.)