| NY | Sep 5, 1859
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *60 That an account between partners and a distribution among them are generally to proceed upon the basis of providing for the payment of all partnership debts and getting in all the assets is entirely settled. And if it appears in this case that this rule has been departed from against the objection of either appellant, the judgment ought to be reversed. The facts found by the referee do not disclose any such case. The finding is silent as to the existence of partnership debts, or of uncollected assets, nor is there in the case any evidence showing or tending to show the existence of a state of facts calling for the application of the rule first mentioned. The question arises, if it arise at all, upon the offers of proof which were rejected, or upon admissions in the pleadings.
As to the offers of proof, they were made after the case had been closed by consent of all parties. The receiving of further proof was then not matter of strict legal right on the part of the party offering it. Its admission rested primarily in the discretion of the referee, and if he did not think proper to allow the proof to be made, and the Supreme Court did not think a case made out requiring them to relieve the party, there is no remedy. This court cannot review the exercise of the discretion of the original tribunal. *61
In respect to the admissions alleged to result from the pleadings, it must be observed that the plaintiff sought an account of the dealings of the firm of John Hayes Co., under two contracts with the railroad, in each of which he claimed to be interested as a partner, and averred that there were large outstanding debts of John Hayes Co., amounting in all to about $2,000, and also that the railroad company remained indebted to them in at least the sum of $12,000. The answers deny his interest in the second contract, and that fact has been found by the referee against the plaintiff. Now the moneys due to John Hayes Co., as well as the debts of that firm, mentioned in the complaint, may as well relate to the one contract as to the other; and although the allegations of the complaint on that subject are not directly traversed by the answer yet when it was established that the allegation of the complaint as to the extent of the plaintiff's interest was unfounded, it was not the duty of the court to regard the unanswered allegation of the complaint as referring to that contract which had been proved. On the contrary, the true view of that allegation is to regard it as dependent upon the plaintiff's own averment of the extent of his interest, and that the overthrow of the plaintiff's position on that subject carried with it whatever of admission would have been implied from the unanswered allegation.
In regard to the sum of $50, admitted by the answers to be an item to be credited to the plaintiff, it has been allowed by the Supreme Court, and the judgment of the referee modified in that respect. If that court is right in supposing that it affirmatively appears that this sum was not allowed to the plaintiff on the accounting, I should not have regarded it as error for which the judgment should have been reversed. When a party wishes to avail himself of an implied admission of the pleadings, it should affirmatively appear that the attention of the court or other tribunal has been called to it. In point of fact, causes are tried and disposed of under the present system with little or no reference to the pleadings, unless some question is made upon them at the trial. And when no *62 such question is there made, none ought to be allowed to be afterwards raised. Any other rule would throw the duty of vigilance upon the wrong party. Each would have diligently to see to it that the court gave to the other the benefit of all admissions, on peril of losing his judgment if he did not succeed in securing to his adversary whatever he could claim from an implied admission in the pleadings.
The judgments should be affirmed.
COMSTOCK and SELDEN, Js., expressed no opinion; all the other judges concurring,
Judgment affirmed.