
    In the Matter of the Final Accounting of George R. Sheldon, as Assignee of William H. De Forest, under a General Assignment for the Benefit of Creditors. William E. Mowbray, Appellant; George R. Sheldon, as Assignee of William H. De Forest, Respondent.
    
      What constitutes a partnership in the. construction and sale of houses — one partner cannot prove on the accounting of the general assignee of his copwrtner a claim for money misappropriated — the remedy is. in equity. .
    
    An agreement under which the owner of certain lots conveys them to an architect who is to erect houses upon them, the owner agreeing to furnish the capital for the venture and the-architect, to contribute his services and to execute mortgages upon the premises from time to time, which the owner is- to negotiate in order to obtain funds for the prosecution of the work, while .both are to share-in the profits, constitutes the parties partners inter sese.
    
    •A referee appointed to take the- account Of the general assignee of the. former owner and grantor of the lots, who has failed, has -no jurisdiction which will enable him to pass upon a claim made by the architect that the assignor converted to his- own use a portion -of the proceeds of the mortgages. Such a. claim can only be considered in an- action in equity brought to obtain a settlement óf the partnership accounts.
    Appeal- by William E. Mowbray, a claimant, from a final order or decree of -the Supreme Court, made at the Rew York- Special Term and entered in the' office of the clerk of the- county of Rew York oh the íltli day of June, 1891, overruling, his exceptions to the report- of a referee and confirming said report, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 3d day of June, 1897, overruling the exceptions of said claimant and confirming the referee’s report.
    
      H. Parsons, for the appellant.
    
      A. Jaretzki, for the respondent.
   Van Brunt, P. J.:

In 1886 one William H. De Forest was the owner of certain unimproved lots in the city of New York, and certain building contracts were entered into between him and the appellant Mowbray for building certain houses on part of said property. In February, 1887, after the work on said houses had progressed a certain distance and had ceased in consequence of the cold weather, a new agreement was entered into between Mowbray and De Forest Under which De Forest conveyed to Mowbray the lots upon which said houses were in process of erection, and ten other similar lots opposite upon which twelve more houses were to be erected. The consideration expressed was $100,000, for which Mowffiray gave back a purchase-money mortgage. All contracts and operations in respect, to the completion of the houses already begun and the building of the new houses were to be made in Mowbray’s name, and he was to take care of the construction and practically to build the houses. De Forest was to provide the necessary capital for the venture. It was understood that Mowbray should, from time to time, as occasion required, execute mortgages which should be negotiated by De Forest for the purpose of providing funds for use as the work progressed. When the houses were finished and sold the profits were to be equally divided. Early in 1887 work was resumed on the unfinished houses and was started on the new houses. All contracts were made by Mowbray in his own name, and from time to time he made payments on account by drafts accepted by De Forest, or notes with De Forest’s indorsements. Prior to the giving of the deed Mow-bray had advanced $800 of his own money in the erection of the buildings then under construction, but put no cash into the adventure after' the giving of the deed. He contributed his work as architect, including the original plans, specifications and working drafts, and supervised the work from the time when it was originally started, about July, 1886, to January, 1888, when De Forest made an assignment.to the respondent herein, George R. Sheldon, for the benefit of his creditors.

This arrangement clearly constituted Mowbray and De Forest copartners as between themselves. The work of construction progressed, Mowbray - making mortgages upon the premises and De Forest negotiating them and thus providing money for the adventure until the assignment of De Forest as above stated. Upon the filing of the schedule and account of the assignee of De Forest it appeared that some of the mortgages or their proceeds were used by De Forest to pay other debts than those contracted under this copartnership. The assignee having been ordered to account before a referee, the appellant Mowbray presented a claim and amended claim, alleging misappropriation by De Forest of copartnership moneys, and also damages because of the breach of the contract between himself and De Forest, and claiming that there was justly due and owing to him from De Forest,, for these reasons, over $137,000. The referee refused to allow the claim of Mowbray, and having made his report, to which Mowbray excepted, the exceptions were overruled and the report confirmed; and from the order of confirmation this appeal is taken.

It is conceded that, as far as the claim for loss of profits arising from the breach of the contract of copartnership is concerned, no recovery can be had in this proceeding. It is, however, insisted that Mowbray can recover back the amount of the funds of the copartnership which were diverted by De Forest from the partnership business, and used by him for his own individual account as disclosed by the schedules and accounts of the assignee.

It is apparent that no claim can be proved before the referee in an assignee’s accounting unless it is one upon which ¿n action at law might be maintained against the assignor. It is also well settled that one partner cannot sue another for an alleged balance due him from his copartner arising out of the partnership affairs- unless there has been an account stated between the parties and -a promise to pay upon the part of the partner sought to be charged. (Hughes v. Smither, 23 App. Div. 590, and cases there cited.)

While undoubtedly the appellant might maintain an action for an accounting against De Forest and .'his assignee, it is clear that he could maintain no action at law to recover any alleged balance due by De Forest until there had been a settlement of the accounts between the partners. It is not claimed that the indebtedness of De Forest to the adventure has been settled by any legal proceeding or by voluntary accounting. I.t is urged, however, that in.the schedules and accounts of the assignee it is admitted that De Forest has diverted certain of the funds which ought to have been applied to the payment of the copartnership indebtedness. But this amount the appellant could not recover in an action at law against De Forest, as the equities between the partners cannot be settled in that way. It must be by an action in equity; and a referee in an assignee’s accounting has no equitable jurisdiction to pass upon questions of this character. Whatever, therefore, may be the ultimate equities between the appellant Mowbray and De Forest we do not think that they can be settled in this proceeding. That must be done in an action in equity against De Forest and his assignee for the settlement of the copartnership accounts. In such an action the riglits of all parties can be protected, and whatever equitable right Mow-bray may have can be enforced.

The order should be affirmed, with costs.

Baebett, Rumsey, Pattebsob and O’Bbien, JJ., concurred.

Order affirmed, with costs.  