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Ensign v. Nelson, 21 Abb. N. C., 321.

courts of equity (Meyer v. Meyer, 25 N. J. Equity, 28; Dean v. 14 Smith, 23 Wis., 483).

The defendant moved to vacate the order, not only upon the alleged insufficiency of the affidavits on which it was made, but also on an affidavit of his own, stating that he had demanded an account of the transactions of the business from the plaintiff, who had refused to furnish it, and that he was in the employ of Munn & Co., in the city of New York, although a resident of the City of Philadelphia. This affidavit, although briefly stating additional facts, vested the plaintiff with the right, under section 568 of the Code of Civil Procedure, to oppose the application for the discharge of the order, by new proof tending to sustain any ground of arrest recited in the order, and such additional proof was produced upon the hearing, but not materially chang ing the case as it had been before presented. After the argument of the motion, and its submission to the court, an application was made on behalf of the plaintiff for leave to add the complaint to the additional proofs produced, and after the hearing of the defendant upon that application, the order was made allowing the complaint to be submitted.

This the court evidently had the power to do, inasmuch as the motion remained undecided, and the complaint was received only as an additional affidavit tending to sustain the order of

arrest.

[The rest of the opinion does not relate to the question of pleading.]

15.

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Williams v. Lindblom, 68 Hun, 173.

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WILLIAMS v. LINDBLOM.

N. Y. Supreme Court, First Dept., General Term, 1893.

[Reported in 68 Hun, 173.]

1. Pleadings are to be construed strictly against the pleader, and if it cannot be determined what has been denied, none of the allegations of the complaint will be deemed to have been controverted.

2. The method of denying allegations contained between specified folios condemned.

3. In an equitable action between partners, for an accounting, a personal judgment for a sum of money cannot be entered against one partner in favor of the other without determining the state of the accounts between them.

4. In such an action the objection to such a judgment may be taken on appeal although the appellant made no specific request at the trial that the accounts between the partners be stated, since counsel had the right to assume that a judgment would be rendered appropriate to the form of the action.

Suit in equity for a partnership accounting.

The Referee's decision gave judgment for a definite sum of money in favor of one partner against the others without determining the state of the accounts.

The General Term of the Supreme Court reversed the judg

ment.

FOLLETT, J. The answer of Lindblom is so defective that had the decision turned upon the state of the issues presented by the pleadings, the defect might have proved fatal to the defendant. The answer" denies the allegations contained in said complaint from the middle of the ninth folio down to the words anyone therefore,' near the end of the twelfth folio of said complaint, except," etc. The folios referred to are evidently those of the original complaint, which are not identical with those of the com plaint as printed in the record, and it is impossible to ascertain what is denied and what admitted. This vicious mode of pleading has been several times condemned in reported cases. (Caulkius v. Bolton, 98 N. Y., 511; Baylis v. Stimson, 110 id., 621; Crosley v. Cobb, 3 How. Pr. [N. S.], 37; Varnum v. Hart, 47

Williams v. Lindblom, 68 Hun, 173.

Hun, 18-23; Avery v. N. Y. C. & H. R. R. R. Co., 29 State 3 Rep., 918.) Pleadings are to be construed strictly against the pleader, and if it cannot be determined what has been denied, none of the allegations of the complaint will be deemed to have been controverted.

An action at law cannot be maintained by one partner against another to recover a sum of money arising out of the partnership transactions until a final accounting has been had and the amount due ascertained. The case at bar is in equity for an accounting between several partners, but by the decision of the referee and the judgment entered thereon it was, in effect, turned into an action at law, and a judgment for a definite sum of money entered in favor of one partner against two others, without determining the state of the accounts between the partners.

The rule for taking a partnership account in an action like this is well stated by Mr. Lindley in his learned work on partnerships:

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"1. Ascertain how the firm stands as regards non-partners. 2. Ascertain what each partner is entitled to charge in account with his copartners, remembering, in the words of Lord Hard- 5 wicke, that each is entitled to be allowed as against the other everything he has advanced or brought in as a partnership transaction, and to charge the other in the account with what that other has not brought in, or has taken out more than he ought.' 3. Apportion between the partners all profits to be divided or losses to be made good, and ascertain what, if anything, each partner must pay to the others, in order that all cross claims may be settled." (2 Lind. on Partnership [3d Eng. ed.], 1031.)

This rule has been approved by several cases in this State. (Neudecker v. Kohlberg, 3 Daly, 407; Rhiner v. Sweet, 2 Lans., 386; Butler v. Ballard, 11 J. & S., 191; Sweet v. Morrison, 103 N. Y., 235; McCall v. Moschowitz, 14 Daly, 16.) Such is the rule in New Hampshire (Raymond v. Came, 45 N. H., 201) and in Massachusetts (Paine v. Paine, 15 Gray, 299). The theory of this action was disregarded by the learned referee, whose decision and the judgment entered thereon violate the rule that judgments must be secundum allegata et probata.

It was urged on the argument that the defendant did not, by

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Dalton v. Vanderveer, 31 Abb. N. C., 430.

7 an appropriate request, ask the referee to state the accounts between the partners. This was unnecessary, for counsel had a right to assume that a judgment appropriate to the form of the action would be rendered, and it was no more necessary to make a specific request than it would be, in an action for a specific performance, to request that a judgment for money be not given, but that specific relief be awarded or denied.

The exeeptions taken by the appellant to the conclusions of law are sufficient to raise the questions here considered. In accountings between partners, it is not usual to award costs until the final judgment is entered, when they may be paid out of the fund or charged against the delinquent partner, so the question of costs will be reserved until the final determination.

The judgment should be reversed, and a new trial granted before a new referee to be appointed by this court, with costs to appellant to abide the final award of costs. VAN BRUNT, P. J., and O'BRIEN, J., concurred.

DALTON v. VANDERVEER.

Supreme Court, Special Term, 1894.

[Reported in 31 Abb. N. C., 430.]

1. Where the complaint alleges an equitable cause of action for the dissolution of a partnership and the appointment of a receiver, and the evidence presents only a cause of action for damages for a breach of a contract for services, the court cannot give judgment for damages, or allow the complaint to be amended, but must dismiss the action. 2. Defendant does not waive his right to a trial by jury by failing to demand the same, if the complaint does not set forth a cause of action triable by jury, but such a cause is for the first time disclosed by the evidence.*

3. Defendant is not bound to plead that plaintiff has an adequate remedy at law in order to render such defense available against a cause of action disclosed by the evidence, where the complaint set forth a cause of action which, if established, would have entitled plaintiff to equitable relief.

Trial by the court without a jury.

*See note at the end of this case.

Dalton v. Vanderveer, 31 Abb. N. C., 430.

The action was brought by George W. Dalton against John 1 H. Vanderveer.

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The opinion fully states the facts.

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GAYNOR, J. The complaint alleges in sum and substance that the defendant owned a tract of sixty-five acres of land, and in order to secure the experience and assistance of the plaintiff in laying it out in lots and streets, and selling it off by lots at auction or private sale, entered into an agreement of co-partnership with the plaintiff, whereby the plaintiff was given a certain interest in common with the defendant in the lands and the future proceeds of sales thereof; that out of such proceeds the defendant was first to be paid the moneys expended in preparing the land for sale by lots, as aforesaid, the agreement requiring him to advance it all; and then $3,000 an acre for the tract, after which the overplus, if any, should be divided between the parties, the plaintiff's share to be one-quarter; and that, after the plaintiff had so plotted and prepared the land for sale, and a large number of the lots had been actually sold, the defendant notified the plaintiff that he dissolved the partnership, and refused to go on 3. any further with the enterprise as a joint one; and the prayer is for a judgment declaring the plaintiff to be a part owner of the land, for the appointment of a receiver to sell the land, and for an accounting and division.

The answer denies the co-partnership, and alleges that the plaintiff was only the employee of the defendant.

The proof shows that there was no co-partnership, but that the plaintiff was employed as an agent by the defendant to prepare the land for sale and sell it, as aforesaid, and that for his services he was to be paid one-quarter of the overplus, as already stated; and that, after the contract had been partly performed, a large number of sales having been made, the defendant discharged the plaintiff. The cause of action which the proof presents is, therefore, one for damages for breach of contract for services. The amount already realized from sales is easily ascertained. Past sales furnish evidence of the time and effort it would take to sell off all of the lots, and also of the price for which the lots can be sold, and it would not be difficult to otherwise prove

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