
    Thomas F. Devine, Plaintiff, v. Walter Melton et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1915.)
    Contracts — agreement to pay owner of certain land a certain sum for purchase of job to wreck buildings and clear site on said land — action against owner of land to recover for refusing to allow him to perform — when complaint dismissed upon merits.
    In pursuance of an agreement between plaintiff and defendant M plaintiff paid to the owner of certain land a certain sum for the pureháse of the job to wreck certain buildings and clear a site on said land, and as a guaranty for the faithful performance of the contract; and defendant M in his own name but for the benefit of plaintiff and himself and the owner of the land made the contract with it for the performance of the work, and said sum was used by plaintiff to obtain a contract with the owner to do the same work after it had refused to permit M to proceed with the work under his contract and plaintiff did the work in the name of a corporation organized by him for that purpose. Thereafter M brought an action against the owner of the land for breach of their contract in refusing to allow him to perform. Said action was really defended by plaintiff; he and his lawyer prepared the case for trial and on the witness stand he denounced M and his brother as crooks. Despite plaintiff’s efforts, M obtained judgment and plaintiff caused an appeal to be taken therefrom and perfected and paid for the stenographer’s minutes of the trial. Held, that plaintiff by his repudiation of the joint contract made in the name of M had forfeited any right he otherwise would have had in the judgment, and that his complaint in an action for an accounting by M with respect to the judgment obtained by him against the owner of the land should be dismissed upon the merits, with costs to defendant M.
    Action for an accounting.
    J. A. Delehanty, for plaintiff.
    Feltenstein & Bosenstein, for defendants.
   Guy, J.

The plaintiff asks for an accounting by the defendant Melton with respect to a judgment obtained by said defendant against the firm of Havemeyers & Elder on November 11, 1914. On or about May 12, 1913, the plaintiff agreed with the defendants to advance $7,000 for the purpose of purchasing from said firm the job of wrecking certain buildings and clearing a site on land owned by the firm in Brooklyn. He also agreed to deposit with the owners of the land $5,000 as a guaranty for the faithful performance of the contract; and it was further agreed that the plaintiff should furnish the necessary pay-rolls for labor performed; that all moneys received from the job should be turned over to him, and all accounts for material sold billed in his name; the profits of the job to be divided forty per cent to the plaintiff and the remaining sixty per cent equally between the other two parties, the-defendants Melton and Pritchett. In pursuance of the agreement the plaintiff paid to Havemeyers & Elder $12,000, and the defendant Melton, in his own name, but for the benefit of the plaintiff and the defendants, made the contract with that firm for the performance of the work as agreed upon. The owners of the property, however, refused to permit Melton to proceed with the work under the agreement, and the plaintiff thereupon made a contract with the owners to do the same work, and the same fund of $12,000 paid by the plaintiff to the owners for the purchasing of the material and as a guaranty for the faithful performance of the contract made in the name of Melton was used by the plaintiff to obtain his contract, which he subsequently performed in the name of the Do It Contracting Company, a corporation he organized for that purpose. After the plaintiff began performance under his individual agreement the defendant Melton brought an action against the owners to recover damages for their breach of contract in refusing to allow him to perform. That action was really defended by the plaintiff; he and his lawyers prepared the case for trial, and on the witness stand he denounced the defendant Melton and his brother as crooks. Despite all the plaintiff’s efforts, however, to defeat the claim 'Melton obtained judgment for $12,153.98, and the plaintiff has caused an appeal to be taken from the said judgment, paid for the stenographer’s minutes of the trial and furnished the undertaking on appeal. The plaintiff by his repudiation, of the joint contract made in the name of Melton has forfeited any right he would otherwise have had in the judgment. In Denver v. Roane, 99 U. S. 355, it appeared that one of the copartners in a law firm refused to take part in the prosecution of a suit in which the firm had been retained on a contingent fee, withdrawing his appearance and severing his connection with the case, denouncing the case privately to one of the judges as altogether without merit and fraudulent, saying that he -had decided not to be involved in a case of so scandalous a character and for so worthless and unworthy a client. The court held that the representative of said attorney had no right to share in the fee received by the copartners as a result of their success in that litigation, sustaining the rule laid down in Wilson v. Johnstone, 16 Eq. Cas. Abr. 606, that he who acts so as to treat the articles of copartnership as a nullity as regards his own obligations cannot complain if they are so treated for all purposes. And in Miller v. Chambers, 73 Iowa, 236, wherein the plaintiff in an action against his copartner claimed portion of a judgment obtained by the defendant against, one for whom the copartnership had performed certain work and services, it was held that as the plaintiff had denied the defendant’s rights, resisted.as far as he could the recovery of the judgment and declared that the conduct of his copartner in suing to recover the judgment was an unrighteous act, there should be judgment for the defendant. The complaint is dismissed on the merits, with costs to the defendant Melton.

Judgment accordingly.  