
    City Court.
    
      Trial Term
    
    March, 1886.
    LOBENTHAL against KELLER.
    Neither an action nor a counter-claim can be maintained at law by one partner against another growing out of an unsettled partnership relation. The remedy is in equity.
   McAdam, Ch. J.

The defendant’s claim for contribution- is valid to the extent, of. $150 and interest, making together $168; but it is not the proper subject of counterclaim, because it grows out of an unsettled partnership relation existing between Mm and the plaintiff’s assignor. The defendant has a suit now pending for an accounting, m wMch he may appropriately charge the above $168 against Ms partner in the adjustment of the accounts. The following authorities sustain these conclusions: Waterman on Set-off, 178, 179; Barbour on Set-off, 90; Story on Part. §§ 221-223; 3 Hill, 188; 27 Barb. 554; Story Eg. §§ 664, 665; 14 Johns. 318; 1 Hall, 180; 6 Barb. 537; 23 Id. 184; 4 N. Y. 186; 43 Id. 598; 54 Barb. 223; 1 Duer, 667. A counter-claim, even if used merely as a set-off, is in the nature of a cross action, which cannot be maintained at law, by one partner against another, until there has been a settlement had and balance struck. The theory of the equity smt is that because the partners have not agreed upon a balance the court should, after the accounting, declare one.

The plaintiff, is, therefore, entitled to judgment for $384.04 with costs.  