14 N.Y.S. 59 | N.Y. Sup. Ct. | 1891
This action is brought to recover the purchase price of a saw-mill, with the logs and timber thereon, under a sale by the plaintiffs to the defendant, made on the 25th day of January, 1875, the defendant to pay $1,300 therefor on the 28th day of February, 1875. The demand was for judgment of this sum, with interest. The an'swer of the defendant alleged that the plaintiffs and the defendant were copartners at the time of, and prior to, the making of this contract, engaged in a general lumber business, and jointly owned the saw-mill described in the complaint. It admitted the purchase of the plaintiffs’ interest therein at the sum of $1,300 at the time staled. It then proceeded to allege that, during the continuance of the co-partnership between the plaintiffs and the defendant, a large indebtedness had been incurred in the business, and that the defendant had advanced moneys, in and about the conduct of the business largely in excess of the sum advanced by the plaintiffs. It also alleged that that the plaintiffs had appropriated a large quantity of the lumber and other property belonging jointly to the concern, and had cut a certain amount of cord-wood, for which they had not accounted to the defendant. All of these matters are set up by way of counter-claims. It was further alleged that the plaintiffs, though often requested, had refused and neglected to account for this property and»advance of moneys. The answer then demanded an accounting between the plaintiffs on the oiie hand, and the defendant on the other, as such Copartners; and further prayed that, after recouping under said counter-claims, so much as was necessary to extinguish the plaintiff’s'claim on the purchase of the saw-mill property, judgment would be taken for the balance against the plaintiffs in the sum of $2,000, and interest from April 1, 1875. These allegations of the answer were fully met by a reply interposed by the plaintiffs, which alleged affirmatively that the amount of money paid out by them in and about the joint business was greatly in excess of the money paid out by the defendant, to-wit, in the sum of $800. It contained a denial of any allegations of appropriating lumber, timber, or other property, and alleged that upon such an accounting it would be shown that the defendant was indebted to the plaintiffs, besides the claim mentioned in the complaint, at least in the sum of $830. The referee has found that the copartnership between the plaintiffs
The questions here litigated relate almost exclusively to matters of fact. A perusal of the testimony satisfies us that the referee has made a proper disposition of all of the questions presented. The accounts of the several parties were very voluminous, covering many pages in the appeal-book. A criticism has been made by the learned counsel for the appellant that the accounts of the plaintiffs were put in, as he calls it, at wholesale. But an inspection of the record shows that the account, which was but a transcript of the books of the plaintiffs when offered in evidence, was not objected to by the defendant, as not being competent or the best evidence of the claim made by them against the defendant upon the accounting, but the objection was solely directed to that part of the account which related to the transactions prior to the time when the defendant came into the concern. In the conclusion reached by the learned referee all the matters embraced by that objection were excluded, and no recovery has been had therefor by the plaintiffs. Moreover, the account of the defendant, also running through many printed pages, was likewise putin evidence without any objection by the plaintiffs. These several accounts being before the referee, the oral evidence was directed to an examination thereof, and to the exclusion of any portion of either, to which objection was successfully made. The conclusion to which he has arrived seems to be well supported by the clear preponderance of the evidence.
A legal proposition, however, has been made by the counsel for the appellant, which is to the effect that a new trial must be had because the referee has permitted a recovery by the plaintiffs of the sum of $672.22 more than they claim in the complaint. The argument which has been addressed to us upon this subject is, in brief, that the plaintiffs cannot set up a counter-claim against the counter-claim of the answer; and that, under section 514 of the Code, they are confined to a general or specific denial of any material allegation of the counter-claim, or they may set forth, in ordinary and concise language, without repetition, new matter not inconsistent with the complaint, constituting a defense to the counter-claim. In a word, the argument
Judgment appealed from should be affirmed. All concur.