
    John A. Eckert, Appellant, v. Percy W. Clark, Respondent.
    (New York Common Pleas
    Additional General Term,
    August, 1895.)
    .By an agreement between the members of a firm of which the plaintiff and defendant were partners, it was agreed that such firm should be dissolved and that defendant should form a partnership .with a third party, and that his former partners should "have certain shares in his interest in the new firm. The articles of the new firm provided that each partner should devote his entire time to the business of the firm and'be com- " pehsated solely, by his share of the earnings. In an action to recover plaintiff’s share of the earnings, which had been received by defendant, held, that, in the absence of an agreement therefor between the parties, ■defendant could not counterclaim for services ■ rendered in the new business.
    
      Appeal by the plaintiff from a judgment of the District Court in the city of Hew York for the first judicial district, rendered at a trial before the justice thereof, without a jury, in favor of the defendant on a counterclaim.
    The nature of the action and the material facts are stated in the opinion.
    
      Sproull, Hammer <& Sproull, for appellant.
    
      John M. Ward, for respondent.
   Gieg-eeioh, J.

This action was brought to recover the sum •of eighty-two. dollars and fifty cents received by the defendant to the use of the plaintiff, which sum was plaintiff’s share in the interest of the defendant in the profits of the firm of Plyer & Clark for the month of January, 1895.

The answer was a general denial and the setting up of a counterclaim in the sum of $250 for “ services rendered from July 2d, 1894, in the care, management and development of Eckert’s interest in the share of Clark in the said firm of Plyer & Clark, which resulted to the enrichment of said Eckert of upwards of nine hundred dollars.”

Prior to April, 1894, the parties litigant and one Herman Hubbard, Jr., were copartners in business as insurance brokers under the firm name of Hubbard, Eckert & Clark.

During the last-mentioned month the parties agreed, in writing, that the defendant should nominally withdraw his connection with said firm ” and enter into a partnership with one Charles Plyer, for the purpose of conducting business as national underwriters under the firm name of Plyer & Clark, and that the partnership should continue as before and extend to all profits and losses arising out of defendant’s copartnership with said Plyer.

On the 2d day of July, 1894, the said Hubbard, the plaintiff and the defendant, by written agreement, dissolved the partnership existing between them, which instrument, among other things, provided that Ci the individual interest of each •of the members of said firm in said one-half interest in the firm of Plyer & Clark is as follows: Said Hubbard f, said • Eckert •§ and éaid. Clark §■it is hereby agreed that said Hubbard, said Eckert and said Clark shall each' continue to own, in his own name and right, and not as a member of the firm of Hubbard & Eckert, the proportion of said business of Plyer & Clark which he formerly owned.”

■ At the same time the defendant, in consideration of $2,000, payment of which was secured by. the promissory notes of the plaintiff, sold to the latter his individual share in the business theretofore controlled b.y the plaintiff, and also trapsferred to him one-third of his interest in the firm of Plyer & Clark and the profits arising therefrom.

After such sale and transfer the business of the said firm of Plyer & Clark was continued by Plyer, Hubbard, the plaintiff and the defendant, and the latter continued to pay to plaintiff his individual share in the profits until the month of Februai-y, 1895, when he failed to pay over the Jatter’s share of the profits accruing during the month of January, 1895,, which he. (the defendant) had theretofore received. The plaintiff then brought this action upon said .claim, which, upon the trial, was admitted by the defendant, the latter, kowpver,, setting up the counterclaim for services rendered in the care, management and development of the plaintiff’s interest in said firm of Plyer & Clark.

This claim for compensation is not shown to be founded upon any promise, express or implied. On the contrary, the „ defendant testified: “ I had no conversation in reference to: the employment with him (the plaintiff); the conversation was-that my services to Mr. Eckert were worth a certain sum; there was no employment about it.” The defendant further testified that he first demanded compensation for services of the plaintiff in the latter part of January; that he had previously, viz.,, in the month" of September, 1894, spoken to him about compensation, when plaintiff said “ for the present' to let it rest.” “ Q. Did Mr. Eckert make any definite terms at that time ? A. Only to say to let the matter rest for the time being. Q. How do you compute this amount you have in your counterclaim, $250 ? A. I place tile value of my services at $1,500 a year, and I compute' that is the proportion that Mr. Eckert should pay.”

There being no agreement to compensate the defendant for the services so rendered, recourse must be had to the written' articles of copartnership of the firm of Plyer & Clark for our guidance, which, in our opinion, clearly evince an intention on the part of the parties to require each of the partners to devote all his time to the business of said firm, and for which services he should receive no compensation save his share of the earnings of the firm. .

As the defendant was required by the terms of the copartnership agreement to rende,r the services in question, it, is obvious that the defendant’s counterclaim was unfounded, and it, therefore, follows that the judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Bischoff, J., concurs.

Judgment reversed and new trial ordered, with costs to. appellant to abide event.  