
    Mary B. Briggs, Ex’rx, Resp’t, v. Amos S. Briggs, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Services—Accounting.
    In an action for an accounting of an alleged partnership between plaintiff’s deceased husband and defendant, it was found that there was no partnership, but that deceased was a clerk, and was to be paid by a share of the net profits, and an accounting from the date of the last settlement was ordered. The final report did not give the date of such settlement, apparently gave deceased credits on his compensation after his death, and for one-third, of the stock, charged plaintiff with a sum less than that admitted on the trial, and failed to show the expenses of running the business. Held, that the report was erroneously made up.
    Appeal from, judgment in favor of plaintiff, entered on the report of a referee.
    
      E. T. Lovatt, for app’lt; Wm. A. Woodworth, for resp’t.
   Barnard, P. J.

The plaintiff avers the existence of a partnership between her deceased husband and the defendant. The answer denied the partnership. The issues were referred to referee to hear and determine. The referee made a separate report that the deceased was not a partner, but a cleric only, who was to be paid one-third of the profits for his services. The referee ordered a judgment in favor of defendant against the plaintiff for disbursements, and that the plaintiff was entitled ah accounting, and that it be referred to him to take and state the accounts.

Properly, the court should have directed this judgment, but no one objected, and the result was one which was designed by the order of reference. The plaintiff was the only one hurt by the separate report, and she does not appeal. The referee found in favor of the plaintiff for $753.97. The defendant appeals. The report is based upon the previous report, but it goes beyond it. By the first report, the right to an accounting was only to be ordered from the date of the last settlement When this last settlement was is not stated either in the interlocutory or final report, and, therefore, no proper decision can be reached on appeal. There is no basis on which to apply the evidence. The report is very general. It may begin in February, 1884, and apparently continue to December 1, 1885, nearly three months after the death, of the plaintiff’s testator. The report seems to give the deceased compensation for his services even after December 1, 1885, as the report contains a credit for bills collected after that time. The report is erroneously made up if the deceased was not a partner. The stock in such a case belonged to the defendant, and should not have been considered in the account. The referee includes the amount in the assets, and gives one-third of it to the plaintiff. The sum charged against the plaintiff by the referee of $705.56 appears to have been much smaller than the true account as admitted on the trial, $2,893.59.

The evidence of the agreement was that the plaintiff’s third was to be one-third of net profits. The report fails to show what the expenses of running the business was during the periods he has selected as the periods for the accounting. The plaintiff’s appeal is from the interlocutory judgment and there is no evidence returned on which that was based.

The judgment should be reversed and a new trial granted at special term, with costs to abide event.

Dykman and Pratt, JJ., concur.  