
    Henry W. Gray, Resp’t, v. George T. Green, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    Partnership—Accounting—Statute of limitations.
    Where in an action for an accounting between partners, there was but two years' delay in the settlement of the partnership accounts to be accounted for in order to prevent the running of the statute of limitations against the cause of action, and no complaint of any delay in the matter of settlement was ever made, nor was the settlement unnecessarily prolonged, the statute is not available as a defense.
    Appeal from judgment entered on report of referee.
    
      Whitehead & Suydam for app’lt; Dos Passos Bros. (G. O. Shelton, of counsel), for resp’t.
   Van Burnt, P. J.

The question involved upon this appeal is whether the claim of the plaintiff was or was not barred by the statute of limitations.

Upon this question this case has previously been before the general term (Gray v. Green, 41 Hun, 524; 4 N. Y. State Rep., 43), and it was determined that notwithstanding the firm had been dissolved by the act of the parties more than ten years prior to the commencement of this action, yet that because the estate of the copartnership had not been completely settled, the statute did not run, as the law will permit a reasonable time to be taken for the completion of the partnership affairs before a right of action will accrue.

Whatever my opinion might be in respect to the proper construction of section 338 of the Code, it must be governed by the previous adjudication in the case at bar; and if the settlement of the business of the firm was not prolonged by unnecessary delay, or misconduct on the part of the plaintiff, no right of action accrued.

It is urged upon the part of the appellants that by the evidence which they have introduced, they have shown that there has been unnecessary delay in the settlement of the affairs of the copartnership, and that its condition at the time of such dissolution was such that its affairs could be settled in a very short time.

The learned referee, upon the evidence which was presented, found that the plaintiff has faithfully, and without unreasonable delay, executed his trust in respect to the settlement and adjustment of the affairs of the copartnership. There was more than evidence sufficient to justify the learned referee in this conclusion.

It may be true that had he found differently upon this point, such finding would have been sustained. But unless there was evidence produced before him which he was bound to consider and by which his judgment should have been governed, there is no reason for disturbing this finding simply because a finding by the trial court of an opposite conclusion might be sustained under the evidence. There were a considerable number of transactions in which the copartneship were interested, which were unliquidated at the time of the dissolution in question.

It is true that a considerable length of time has been taken by the plaintiff in the final- settlement of these accounts. But it must be borne in mind that the dissolution in question took place on the 21st of October, 1872, and this action was commenced on the 5th of August, 1884, so that but two years’ delay in the settlement of these accounts is to be accounted for in order to prevent the running of the statute, according to the decision of this case when it was before the general term upon the previous appeal.

We cannot see, upon an examination of this proof, that the plaintiff could have settled this business within two years after the dissolution of this copartnership. No complaint of the delay in the settlement of the affairs of the copartnership was ever made by the defendant, nor was the plaintiff ever requested or notified to wind up and settle the affairs of the copartnership in any other manner or in any shorter or other time than he was employing in winding up and settling the same. It appears that at the time of the dissolution there were debts of the firm still left to be paid, and assets to be collected, and until this was done,

. the true pecuniary relations of the two parties, to the firm could not be ascertained and closed.

As the learned referee has stated in his opinion that it might be that the affairs of this concern might have been closed sooner by the parties, yet upon an examination of the whole case we do not find that it exhibits sucha lack of administration on the plaintiff’s part as to make the Statute of Limitations available as a defense in this case under the principles heretofore laid down.

We think, therefore, that the evidence is not of such a character as would necessarily authorize the defendant to avail himself of the Statute of Limitations.

The judgment should be affirmed, with costs.

Daniels, J., concurs; Barrett, J., I concur, feeling bound by the previous decision.  