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Westerlo v. Evertson

Westerlo v. Evertson, 1 Wend. 532 (N.Y. Sup. Ct. 1828)

Court: New York Supreme Court · State Trial Courts
Decided: October 15, 1828
Judges: Savage
Citations: 1 Wend. 532

Cited by 15

Headnotes

The role that an action of noTuJ1 by one gainstAnother formoniespaid ship 6 concern, hasbeen a settlement of ^acancetS’ Struck and an express pay, applies as partnership1^ practismg at-other partnerships-

Summary

Error from the Albany mayor’s court. Evertson sued Westerlo.in the Albany mayor’s court, and declared in assumpsit on the common mtiney counts; the defendant plea-the general issue, and gave notice of set off". On the trial of the cause, the plaintiff proved that he bad paid the amount of a judgment obtained against him and the defen^ant ™ favov °f tbe people of the state, amounting to $290, 47 • the half of which sum he claimed to recover. It appeared that the judgment was for clerk’s fees in this court, chargeable to the defendants jointly as practising attornies, The defendant’s counsel moved for a nonsuit. The recorder decided that the payment made by the plaintiff being a coerciYe payment, he was entitled to maintain an action against the defendant for a moiety of the money paid; that the payment was not a partnership transaction, and denied the motion. The counsel for the defendant then offered to prove that the plaintiff, as the partner of the defendant in the praetice of the law, had received over and above his proportion of the proceeds of their law-office, a sum more than sufficient to counterbalance the claim set up by the plaintiff; which evidence was rejected by the court, on the ground that the plaintiff had a right to claim contribution for the money paid by him on the judgment, and the defendant was not entitled to set off unliquidated partnership accounts. Under the direction of the court, a verdict was rendered for the plaintiff for $153, on which judgment was entered;

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Opinion of the Court — Savage

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By the Court, Savage, Ch. j.

Evertson sued Westerlo in the mayor’s court, in the city of Albany, to recover half the amount of a judgment obtained against the plaintiff and defendant, as attornies, for clerk’s fees, charged to them jointly as practising attornies.

It was contended that no action at law would lie, as the matter in controversy was a partnership concern. The recorder held, that the action will lay by one co-defendant *534 against the other, to compel him to contribute, and that this was not a partnership transaction. If the recorder was right, then, in case two judgments are recovered against two partners, and one pays one judgment and the other the other judgment, each may maintain an action against the other for half the money paid by him, and so on to the end of the settlement of the concerns of the partnership. The fact certainly was proved, that the money paid by the plaintiff was a partnership debt. In the case of Casey v. Brush, ( 2 Caines, 298 ,) it was said the rule was too well settled to be shaken, that partners cannot sue each other at law for any thing relating to their partnership concerns, unless there has been a settlement, a balance struck, and an express promise to pay. This doctrine has since been repeatedly recognized by this court. (12 Johns. R. 402. 17 Johns. R. 80. 14 Johns. R. 322. 18 Johns. R. 245.) The same rule prevails in the English courts, (2 T. R. 483, n., 1 Stark. R. 63, Robson v. Curtis,) where Lord Ellenborough says, “ If there had been partnership dealings, and only one item remained unadjusted, the difficulty as to partnership would disappear.” Such is not this case; as the défendant below offered to shew that the plaintiff below was his debtor on an unsettled partnership account.

Judgment reversed ; venire de novo to Albany mayor’s court.

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Cited by 15 cases

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Relies on it most ⓘ

Cummings v. Morris25 N.Y. 625 (1862)
Belanger v. Dana4 N.Y.S. 776 (N.Y. Sup. Ct. 1889)
Rathbone v. Stocking2 Barb. 135 (N.Y. Sup. Ct. 1848)
Ives v. Miller19 Barb. 196 (N.Y. Sup. Ct. 1855)
Francisco v. Fitch25 Barb. 130 (N.Y. Sup. Ct. 1857)
Chadsey v. Harrison11 Ill. 151 (1849)

Most recent

Palm v. Poponoe56 P. 480 (Kan. 1899)
Belanger v. Dana4 N.Y.S. 776 (N.Y. Sup. Ct. 1889)
Bloss v. Chittenden2 Thomp. & Cook 11 (N.Y. Sup. Ct. 1873)
Bouton v. Bouton40 How. Pr. 217 (N.Y. Sup. Ct. 1870)
Cummings v. Morris11 N.Y. 625 (1862)
Cummings v. Morris25 N.Y. 625 (1862)

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