Opinion
July 9, 1915.
William O. Gennert, for the appellant.
Nathaniel A. Elsberg, for the respondent.
The complaint alleges that on or about October 31, 1914, plaintiff and defendant entered into a "partnership or joint adventure" to purchase and sell camel's hair stock; that it was agreed that they should purchase a quantity of the specified goods to be received, held and disposed of by the parties to this action for their joint account; that they should share equally in the profits and losses and that the goods should be purchased and stored in the name of defendant, except 262 bales which were to be stored in the name of plaintiff. The complaint then goes on to state in detail the carrying out of this agreement as to 360 bales. It is then alleged that prior to the delivery of any of the 360 bales "the plaintiff and defendant agreed that they would include in their said joint adventure or partnership the purchase of another lot of camel's hair stock of a class known in the trade as Grade `A,' which said purchase was to be made in the same manner as the other said purchase, viz., in the name of the defendant to be received, held and disposed of for the joint account of the plaintiff and defendant and stored in the defendant's name, the plaintiff and defendant to share equally in the profits and losses thereof and each to be interested in said account to the extent of an undivided one-half thereof." Then follow allegations tending to show that defendant purchased in his own name and for his own benefit, concealing the fact from the plaintiff, a considerable quantity of the specified goods which he has resold and as to which he has refused to account. The prayer is the usual one for a dissolution of the partnership or joint adventure, an accounting and judgment according to the outcome of the account.
The complaint, as we consider, sufficiently alleges a joint adventure between the parties, a relation which has been defined as a "limited partnership, not limited in a statutory sense as to liability, but as to its scope and duration, and under our law joint adventures and partnerships are governed by the same rules." ( Ross v. Willett, 76 Hun, 211.)
There being alleged a partnership as to the profits and losses, and a joint interest in the subject-matter of the adventure an action in equity for an accounting is the appropriate remedy. Whether or not the defendant is accountable for the profits, if any, realized upon the purchase and sale of the goods as to which he had refused to account, will depend upon the proofs at the trial, but if the facts be as alleged in the complaint a clear case for an accounting as to these goods will apparently be made out.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the demurrer overruled, with ten dollars costs, with leave to defendant to withdraw the demurrer and answer within twenty days upon payment of costs in all courts.
INGRAHAM, P.J., CLARKE, DOWLING and HOTCHKISS, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer overruled, with ten dollars costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below.