
    Dyckman vs. Valiente, and others.
    The plaintiff and several other persons, including some of the defendants, organized a steamship company, by filing a certificate under the general law for incorporating steamship companies, and subscribing for the stock, applying the capital paid in to the building of a ship to carry freight and passengers between New York and Cuba. Subsequently, a majority of the stockholders united together, as it was alleged, to frustrate the plan on which the ship was built, and to deprive the plaintiff of his rights. And some of the defendants, refusing to recognize the corporation so formed, and claiming the sole ownership of the ship, mortgaged her to M. They then organized a new company, by a different name, and caused the ship to be registered as belonging to the latter company, and to which company they conveyed the ship, and the new company was about to issue stock to the defendants, to the exclusion of the plaintiff, for the value of the ship. It was alleged, and offered to be proved, that the defendants had sold the ship, to the government, and retained the proceeds.
    
      Held, that the questions of tenancy in common, or of joint tenancy, or of part ownership, were not in the case; but that the plaintiff, as a stockholder of the first corporation, was entitled to equitable relief, at least as against those of the defendants who were officees or stockholders of that corporation, and who participated in the acts charged in the complaint, and the necessary effect of which was the destruction of his rights as such stockholder.
    
      Held, also, that the plaintiff’s complaint could not have been rightfully dismissed, even regarding him as a mere creditor of the first corporation.
    
      Held, per Leoxakd, J., That the plaintiff was prima ¡facie entitled, as a partner, to an accounting from his fellow stockholders, as partners, for the value of the partnership property converted by them, and from which he was excluded.
    THIS action was tried at a special term before a justice of this court, who, at the close of the plaintiff’s testimony, dismissed the complaint. From the judgment thereon entered the plaintiff appealed. The complaint sets forth, that the defendant Joaquin Baralt, in behalf of himself and others, defendants in this action, in the year 1860 proposed to the plaintiff to organize a steamship company, to carry freight and passengers between Hew York and Cuba; that for the purpose of carrying out the project, it was agreed that the plaintiff should, in his own name, contract with the firm of Boardman, Holbrook <k Co. for the building of a steamship by them ; that the company should thereupon be organized, and the steamship, when completed, should be conveyed to the company. That in pursuance thereof, the plaintiff, on the 15th of September, 1861, made the contract with Board-man, Holbrook & Co. for building the ship, which was to cost $120,000. That Boardman, Holbrook & Co. made a sub-contract with Jeremiah Simonson to build the hull of the ship, for the sum of $51,000, the performance of which sub-contract by Boardman, Holbrook & Co. the plaintiff guarantied. That in pursuance of the foregoing,, the plaintiff and Baralt, Boardman, Holbrook and others organized “The Hew York and St. Jago Steamship Company,” by filing, on 1st of October, 1860, a certificate under the general law for incorporating steamship companies; that to complete the organization of this company, a subscription list of the stock of said company was subscribed by the plaintiff, by the firm of Valiente & Co., (composed of the said defendant Baralt and the two defendants Valiente,) the said firm of Boardman, Holbrook & Co., and by the said Baralt as attorney for numerous other parties residing in Cuba; a copy of the subscription list was annexed, by which it appeared that Boardman, Holbrook & Co. subscribed for $20,000 of the stock; Valiente & Co. $30,000; W. H. Dyckman, the plaintiff, $13,000; that all the subscribers excepting the plaintiff and Boardman, Holbrook & Co. resided in Cuba. That during the building of the steamship the plaintiff received from the firm of Valiente & Co. various - remittances of money, for themselves and the other subscribers, on account of their subscriptions, all of which the plaintiff paid over to Boardman, Holbrook & Co., on account of the contract for building the ship; that the plaintiff paid to Boardman, Holbrook & Co., of his own money, $3250 on account of the plaintiff’s subscription to the stock in said company, and his interest as part owner in said ship; that the plaintiff has also disbursed and paid out in and about the construction of the ship, and in and about the affairs of the company, 
      $1348.95; that hy virtue of such payment the plaintiff is part owner in said ship, and entitled to an interest proportioned to the amount of these payments. That the plaintiff has contributed to the capital of the company less than the amount of his said subscription, which has been assented to by Baralt and the other subscribers. That the ship is now completed, and called the Santiago de Guia; that some amount is due and unpaid, both to Boardman, Holbrook & Co. and to Simonson, on account of the building contract. That the defendants in this action have united together to frustrate the plan on which the ship was built, and to deprive the plaintiff of his rights, and they refuse to recognize the Hew York and St. Jago Steamship Company. That Baralt and the firm of Boardman, Holbrook & Go., claiming ownership in the whole ship, on the 15th June, 1861, mortgaged the same to the defendant Juan C. de Mier, to secure $35,000, alleged to have been loaned by De Mier to Baralt. That the defendants have caused the ship to be registered in the name of “The Cuba and Hew York Steamship Company,” a new company which the defendants have organized, and to which they conveyed, or caused to be conveyed, the ship. That this company are about to issue stock to Baralt and his confederates, to the exclusion of the plaintiff, for the value of the ship. That the ship is worth much more than her cost. That the defendants De Mier, Baralt and Boardman are about to remove the ship to Cuba. The complaint prays that an account may be taken of the cost of the ship, and of the various contributions thereto; that the plaintiff's rights may be ascertained and declared; that the ship may be conveyed to the company first organized; or, that the ship may be sold, and its proceeds distributed. And also prays for other and further relief. The defendants in this action consist, (1.) Of the subscribers to the stock of the corporation organized by the plaintiff including Baralt and Boardman, Holbrook & Co. (2.) Juan C. De Mier, the said mortgagee of the ship. (3.) The Cuba and Hew York Steamship Com-pony, which is the new company organized by the defendants. (4.) One Joseph Belknap, connected with the organization of the last company. All the subscribers to the first company, “The New York and St. Jago Steamship Company,” excepting Boardman, Holbrook & Co., put in a joint answer, sworn to by Baralt, in which they deny that the plaintiff paid Boardman, Holbrook & Co. $3500 on account of his subscription to the stock, but they say the plaintiff has always claimed to be a creditor of the ship, and her owners, for this sum, and the said sum of $1348.95. They deny that the plaintiff is a part owner of the ship, or entitled to an interest in it. They deny that Baralt, or any one, assented to a diminution of the plaintiff's subscription, but that the plaintiff violated his agreement in that respect. They deny that there is any thing due to Simonson. They put in issue the payment to Boardman, Holbrook & Co. by the plaintiff of all sums received by him from Valiente & Co. and others. They deny that they have united together to frustrate the original plan, but say that the plaintiff has, and that he has refused to pay over any part of his subscription, claiming that the moneys advanced by him constitute a debt due by the owners of the ship, and he has thereby compelled the defendants to organize the new company, which company now holds the title to the ship, and is the true and lawful owner thereof. Boardman and Holbrook put in a joint answer, exactly like the foregoing. These two answers put in issue but two facts, viz., whether the plaintiff had paid over all the moneys received from Valiente & Co., and whether the plaintiff's diminution to his subscription was assented to. All other substantial facts in the complaint are admitted by this answer. The defendant De Mier put in an answer admitting the mortgage executed to him; that the defendants have caused the ship to be registered in the name of, and conveyed to the Cuba and New York Steamship Company. He admits that he, Baralt, and Boardman are about to remove the ship to Cuba; he denies that stock in the new company has been issued to Baralt and his confederates; he denies that any thing is due to Simonson; that the plaintiff has, or ever had, any interest in the ship and stock of the company, and denies any knowledge or information, &c. of other matters in the complaint. The Cuba and New York Steamship Company put in an answer, averring that they are sole owners of the ship, and that the ship, on the day of the commencement of this action, was about to sail for Cuba; and their answer then puts in issue the rest of the complaint. Joseph Belknap put .in an answer, averring that his name was used in the organization of the new company, and that he made oath to some paper connected with the same; and his answer then put in issue the rest of the complaint. On the trial, the plaintiff proved that a large number of individuals in Cuba (all of whom are defendants in this action) on the 6th of June, 1860, executed an agreement, or articles of copartnership, with each other, and a power of attorney to the defendant Baralt, for the purpose of “forming a company” in New York to “furnish a steamer” to “establish steam communication between New York and Cuba,” with a capital of $100,000, in transferable shares of $1000 each," to be increased to a larger sum if the majority of the partners should agree to it. The agreement and power provides for the time of payment of installments of the shares, the amount of subscriptions to be taken in Cuba and in New York respectively, the appointment, powers, duties, and compensation of agents of the company, which agents are to be the consignees of the vessel. .The 8th clause provides that these agents “will keep separate accounts of the company’s business, and the books containing them will at all times be exhibited to any partner desiring it.” The 11th clause provides for an annual distribution of the net profit of the enterprise, and for a reserved fund. The 12th clause provides for building additional vessels, by the application of the reserved fund, and the issue of new shares. The 14th clause provides that the duration of the company shall be nine years, which may be prolonged by the unanimous vote of two-thirds of the capital subscribed. The 16th clause authorizes Baralt, with the agent he may select, to place the company in activity. Baralt presented himself in Hew York to the plaintiff, with this written agreement and power, in June, 1860, and entered into negotiations with him to carry out this project. Boardman, Holbrook & Co. took part in these negotiations, and Baralt, in them, acted for himself, his partners, and his constituents, under the power. Thereupon the plaintiff entered into an agreement with Boardman, Holbrook. & Co., dated the 15th day of September, 1860, for the building of a steamship by the latter, for the sum of $122,000. The agreement provided that a trial trip should be successfully made before delivery; that the expenses and risks, and marine insurance of the trial trip, should be for the account of Boardman, Holbrook & Co., and that the ship was to be insured on account of Boardman, Holbrook & Co. It further provided that the payments, under a sub-contract with the builders of the hull, should be guaranteed by the plaintiff, who should make these payments direct to the builders of the hull. At the same time Boardman, Holbrook & Co. entered into a contract with the plaintiff, agreeing, in consideration of the said contract for building the ship, and of the sum of $2000 paid ly the plaintiffto take an interest in the ship to the amount of $20,000, in the cost of said ship, for which amount Boardman, Holbrook & Co. agreed to subscribe for stock in a company to be organized, or to be interested in a partnership for that purpose, if it should be deemed best to establish such partnership, the amount of the $20,000 to be deducted ratably from the several installments payable under their contract for building the ship. They also agreed that the plaintiff should be the agent of the ship, for the city of Hew York, upon the terms agreed on between the plaintiff and the other owners or stockholders of said ship. They also agreed to make a deduction of 2-|- pei cent from the price of the ship, to be allowed as a commission to the plaintiff, and to be by him allowed to the owners of the ship. Whereupon Boardman, Holbrook & Co. contracted with J. Simonson to build the hull for $51,000, and the plaintiff, in pursuance of his covenant with Boardman, Holbrook & Co., guaranteed the payment of the $51,000. At first it was the intention of the parties in Cuba that this should be a partnership enterprise, and it was the intention of the parties in Hew York that it should be either a partnership enterprise, or else an interest in stock of a corporation, which corporation should be the sole owner of the ship. The latter intention prevailed, and in pursuance of the said previous regulations, and about the same time with the contract for the building of the ship, the parties agreed to form a company, and they did form a company, in October, 1860, under the general laws of this state, by filing a certificate of incorporation, subscribing to the stock, and appointment of officers. The certificate of incorporation, dated October 1, 1860, was subscribed by the plaintiff, Baralt, Boardman, Holbrook and others, and appointed directors, among them the defendant Boardman and the plaintiff. The capital of this company was $120,000, and its objects the same as those expressed in the said articles of copartnership. The subscription list' to the stock of the company was subscribed by the plaintiff for 13 shares for $1000 each; by Valiente & Co. for 30 shares for $1000 each; by Boardman, Holbrook & Co. for 20 shares for $1000 each; by Joaquin Baralt for 57 shares for $1000 each, as attorney for the persons who subscribed the articles of copartnership in Cuba, and as attorney for Felix Frerer, Antonia Colas, and Manuel de La Torre. The plaintiff was appointed agent of the company in October, 1860. The Cuban subscribers paid their subscriptions through the Cuban house of Valiente & Co., who remitted to the plaintiff, who paid the remittances to the builders of the ship. Boardman, Holbrook & Co. paid their subscriptions by deducting their quota from the cost of the ship. The plaintiff, on signing his contract above mentioned with Boardman, Holbrook & Co. paid the $2000, being the same sum mentioned in one of the contracts, “on account of contract for building" the ship. The plaintiff considered-this payment as made on account of his subscription to the capital stock. On the 1st of November, 1860, the first installment of 25 per cent on the stock was payable to the builders of the ship, amounting to the sum of $25,112.50. On the 1st of November, 1860, the plaintiff paid to the builders of the ship $23,112.50, making, with the $2000, the exact amount due on that day, $25,112.50. These two payments were made up of the amount of ¿ of the plaintiff’s subscription of $13,000 to the stock, viz., $3250 paid with the plaintiff’s own money, an additional sum of $138.97 of the plaintiff’s own money, and all the money theretofore received by the plaintiff from the Cuban subscribers. The plaintiff intended all these payments of his own money as a payment on account “of the subscription made" by him “to the stock of the ship." Besides this, the plaintiff had, with the approval of Baralt, made various disbursements for the ship, and the first company, amounting to over a thousand dollars. The plaintiff intended that these also should go against the subscriptions made by him to the stock of the ship. These various payments made bj the plaintiff, and some subsequent payments made by the plaintiff to the builder, after crediting all the remittances received from the other subscribers to the stock, amounted, with interest to January 1st, 1861, to the sum of $4598.95. In January, 1861, the plaintiff informed Baralt, then in New York, that it was doubtful if the plaintiff would continue the payment of his whole subscription of $13,000 to the stock. He at the same time made a similar statement to Boardman. Baralt expressed the opinion that he could arrange the difficulty on his return to Cuba. On his return to Cuba, Baralt wrote to the plaintiff, “On being informed of the deficiency which results in the capital from your not being able to continue in the payment of the $9000 remaining of your shares, some of the principal stockholders present took said shares, with which our common capital is completed, and a difficulty obviated which seemed so great in Hew York.” Baralt subsequently made a like oral declaration to the plaintiff. In June, 1861, Baralt asked the plaintiff for an account of the moneys he had contributed, and the plaintiff gave Baralt the account already referred to. In June, 1861, Baralt told the plaintiff, as a reason for the formation of a new company, that as he, Baralt, and others, had not been able up to that time to pay the builders of the ship in- full, by paying their quota of subscription, a loan upon the vessel was necessary; that the party making the loan would, of necessity, in order to secure himself, become president of the new company. Baralt also told the plaintiff that he wanted liberty of action, in regard to the, formation of the second company. The plaintiff replied to Baralt, that if he would do what was right, he, the plaintiff, would put no obstacle in his way; telling him at the same time, that the balance shown by the account he had given Baralt, $4598.95, due December 31, 1860, must be considered to represent the plaintiff’s interest in the ship. In the plaintiff’s conversation with Baralt, and the others interested in the ship, he always made the payment of the balance a condition of his relinquishing all interest in the ship. In J une, 1861, Baralt for the first time objected to the plaintiff being interested in the ship. On the 15th day of J une, 1861, the defendant Baralt executed to the defendant De Mier a mortgage on six-seventh parts of the ship, to secure the payment of $35,000 in ninety days, reciting in the mortgage that the ship had never been registered or enrolled, and that Boardznan, Holbrook & Oo. owned the other seventh part of the ship. On the' 11th day of July, 1861, the defendants organized the second company, The Hew York and Cuba Steamship Company,” with a capital of $180,000. On the 11th day of July, 1861, the directors of this new company, including the defendants De Mier, Boardman, Valiente and others, held the first meeting of the board of directors, and appointed the defendant De Mier president of the new company, and resolved that the ship he accepted as the full amount of the capital stock of the company, $180,000. The board of directors never transacted any other business. This new company was formed without the assent of the plaintiff. On the 13th of July, 1861, Simonson, the builder of the hull, gave a builder’s certificate, stating that he had built the ship for account of the new company, the Cuba and New York Steamship Company. On the 17th day of July, 1861, the defendant De Mier, as president of the new company, took out a register for the ship, he, De Mier, making oath that the stockholders of said company were the only owners of the ship. The answers admit that the ship had been conveyed to the new company; that the plaintiff’s advances have never been paid; and that he has been excluded from all interest in the ship; and claim that the new company is sole owner of the ship. The plaintiff offered to show that the ship had been sold without his knowledge or consent, but the court excluded the testimony. The counsel for the plaintiff offered to prove the amount the subscribers to the stock, other than the plaintiff, were in arrears at different times, but the court excluded the testimony. The counsel for the plaintiff offered to prove that the defendant Baralt and his confederates had sold the ship to the United States government, but the court excluded the testimony. The plaintiff’s counsel offered to prove that the defendant De Mier had sold the ship for $200,000, had received the proceeds of sale, had paid a part of these proceeds to Baralt, a part to Boardman, Holbrook & Co., and had kept the rest himself, but the court excluded the testimony. On the foregoing testimony, the court being of the opinion that the plaintiff was not entitled to any relief in this action, the plaintiff offered to show, by reading in evidence the deposition of the defendant Baralt, taken on behalf of the defendants, that the said Baralt agreed to pay the plaintiff the amount of his account, if the plaintiff would consent to relinquish his agency and interest in the ship, and consent to the new arrangement by which the plaintiff was excluded from any interest in the ship, and that the plaintiff complied with these conditions; but the court refused to receive the evidence. The plaintiff then moved to amend the complaint so as to make it conform to the proof thus offered, which motion the court denied. The court then dismissed the complaint, on the grounds that the plaintiff being a part owner of the ship, an action would not lie against his co-owners, as no conversion or destruction of the vessel had been proved; that the owners of said ship were tenants in common, and no act had been alleged or proven that would entitle the plaintiff to the equitable interposition of the court. To all these adverse rulings the plaintiff excepted.
    
      Henry A. Oram, for the apppellant.
    
      I. T. Williams, for the respondents.
   Sutherland,. J.

After a careful examination of this case, I can not avoid thinking that the pleadings were drawn and that the action was tried without any very definite idea of the ground or principle upon which the plaintiff had, or claimed to have, a right to equitable relief.

I am inclined to think that when the plaintiff rested, and the defendants moved to dismiss his complaint, he had presented on the pleadings and proofs a prima facie case for equitable relief; and it is very plain to me that his complaint should not have been dismissed on the ground upon which it was dismissed, which ground, as I read the case, was substantially that the property in the ship was in the parties as tenants in common; that no conversion or destruction of the ship having been proved, no action would lie by the plaintiff against his co-owners; that no act had been alleged or proved which entitled the plaintiff to equitable relief as a tenant in common.

Now, in my opinion, there was no question of tenancy in common, or of joint tenancy in the cáse. As between Board-man, Holbrook & Co., as contractors for the building of the ship, and the plaintiff as the party with whom they made the contract, and as between them as such contractors and the first corporation, “ The New York and St. Jago Steamship Company,” no doubt the property in the ship was in Boardman, Holbrook & Co. until her delivery by them under the contract, (Andrews v. Durant, 1 Kern. 35;) but as between the plaintiff and such of the defendants as were officers or stockholders of the first corporation, “The New York and St. Jago Steamshij) Company,” and as between the plaintiff and such of the defendants as took or acquired their stock or interest in the second corporation, “The Cuba and New York Steamship Company,” with notice or knowledge of the plaintiff’s interest or rights in the first corporation, or of his rights as between him and the first corporation, or the stock subscribers of the first corporation, I think the property in the ship was in the first corporation. In looking at the case made by the pleadings and by the proofs, when the plaintiff rested and his complaint was dismissed, to see whether he was entitled to the equitable relief specifically asked for, or other equitable relief, as against all or any of the defendants, I think the property in the ship should be considered to be in the first corporation. I think the judge at special term, on the pleadings and proofs, for all the purposes of the action, should have considered the title or ownership of the ship to be in the first corporation, and to have been from the time of its organization.

I do not see why the first corporation was not regularly organized under the act. At all events, it appears to me that such of the defendants as participated in its organization, or subscribed for its stock, ought not to be permitted to allege any irregularity in its organization to defeat the plaintiff’s equity.

I think the question of equitable relief of any kind, and as to any of the defendants, was between the plaintiff, either as a stockholder or creditor of the first corporation, and such defendants. If so, the question of tenancy in common, 'or of joint tenancy, or of part ownership, was not in the case, for a stockholder, as such, can not properly be said to have the interest of a tenant in common, or joint tenant, or of a part owner, in the property real or personal in which the capital or capital stock is invested during the lifetime of the corporation.

If the plaintiff’s position was that of a stockholder of the first corporation, or he had a right to be regarded as claiming relief as such, the opinions at general term and special term, in Abbot v. The American Hard Rubber Company, (33 Barb. 580,) and the cases referred to in the opinions, will sufficiently illustrate the equitable ground or principle on which, I suppose, he was, on the pleadings and proofs, entitled to equitable relief, at least, as against those of the defendants who were officers or stockholders of the first corporation, and who participated in the acts charged in the complaint, and the necessary effect of which was the destruction of his rights as such stockholder. (See also The People v. The Albany and Vt. R. R. Co. 24 N. Y. Rep. 261, and memorandum of the Reporter at the end of the case.)

I think that, at all events, as to such defendants, the plaintiff was a stockholder in the first corporation, and had a right to be regarded ag a stockholder to the amount of $3250, and probably to the whole amount claimed, particularly considering Baralt’s letter from Cuba; the mortgage by De Mier; the organization of the second corporation without consulting the plaintiff; the repudiation by the answers of any right of the plaintiff in the second corporation as a stockholder or otherwise; the registry of the ship (the only property of the first corporation) in the name of the second corporation; the offers by the plaintiff to show that subscribers to stock in the first corporation other than himself were in arrears; and his offer to show that the ship had been sold to the United States government by Baralt and his confederates, and the proceeds of the sale ($200,000) divided between De Mier, Boardman, Holbrook & Co. and Baralt.

I think the evidence offered, to show that others of the subscribers to the first corporation (who are all defendants in this action) were in arrears as to their- subscriptions for stock in the first corporation, should have been received, as it would have tended to show that they ought not to take the position in this action, that the plaintiff was not a stockholder in the first corporation, but was to be considered a mere creditor of that corporation, because he had not paid up his stock in full.

I think, too,- the proof as to the sale of the ship to the United States was proper, and should have been received, even if it was not necessary to show what relief, and the extent of the relief, which should be granted.

The very ground upon which the complaint was dismissed may be said to assume, that the plaintiff was or should be regarded as a stockholder in the first corporation; for he could not be a tenant in common without having an interest in the ship, and it was not pretended, and there was not a pretense for pretending, that the plaintiff had any interest in the ship, except what came from his subscription for stock in the first corporation, and the payments he had made.

Even if the plaintiff was to be regarded as a mere creditor of the first corporation, I am by no means prepared to say that his complaint could have been rightfully dismissed. The defendants, or some them, had got the only property of that corporation, or had put it in a position that he could not reach it at law. I think the case shows, that this had been done in a way, or by acts, which must be deemed fraudulent as to the plaintiff, even regarding him as a mere creditor of the first corporation. ¡Nothing was left of the first corporation but its corporate name. A judgment and execution against it would have been fruitless. Possibly, under the provisions of the act under which the corporation was organized, the plaintiff as a creditor of it might have maintained an action against one or more of the defendants as subscribers for stock in the first corporation, after judgment and execution against the corporation; but, considering that none of the defendants demurred, but all answered, and that the question as to the plaintiff’s right, to relief as a creditor is presented by the dismissal of his complaint, I do not think that it can be said that his complaint could have been rightfully dismissed, even regarding him as a mere creditor of the first corporation.

A court of equity has jurisdiction in all cases of fraud. In some cases of fraud courts of law have concurrent jurisdiction ; and, in many cases of fraud, it has been the practice or usage of courts of equity to decline to exercise their jurisdiction, but leave them exclusively to courts of law; but, even in such cases, it can not be said that courts of equity have not jurisdiction. I am inclined to think that, in the principal case, regarding the plaintiff as a mere creditor of the first corporation, the special term could not properly have declined to exercise its jurisdiction, on the ground that he had a remedy at law, or had not exhausted his remedy at law..

My conclusion is, that the judgment of the special term should be reversed, and that there should be a new trial, with costs to abide the event of the action.

Leoítard, J.

The steamship was conveyed by taking out a register in the name of the Cuba and Hew York Steamship Company as owner, through the action of some or all of the other defendants, wrongfully and in disregard of the rights of the plaintiff. Simonson did not, in fact, build the' ship for that company, and in giving the builder’s certificate, which entitled that company to take out a register, he but followed the directions of certain of the defendants whom he supposed authorized to direct him in respect to the vesting of the title to the ship, or obtaining the usual indicia of title. It was, nevertheless, the act of those, who procured, directed or controlled the use or application of that certificate and the affidavit of De Mier. Up to that time the moneys of the plaintiff, and of the individual defendants, except' De Mier, had been used in constructing this steamship, and they, who so advanced their money, were copartners in the adventure.

The act of causing the steamship to be vested in the Cuba and New York Steamship Company, or in excluding the plaintiff from his interest in her, was a conversion of the partnership property by some of the partners, in which all of them, who have participated in the divisions of the funds or the proceeds of the sale, must be held to be bound, either as actors or by ratification of the act.

The plaintiff has been excluded from participation. He is "entitled to an account as against these partners; or, at least, he may be so entitled, if the facts and positions above stated are finally borne out by the proofs on both sides, at the close of the case. .

I am satisfied that the complaint was incorrectly dismissed, and that the plaintiff was then entitled prima facie to an account, as against his partners,.of the value of the partnership property converted by them from which he was excluded.

The New York and St. Jago Steamship Company never went into operation, and seems to have but .little to do with the case, except ais showing the intention, originally, of those who were active in promoting the enterprise, and who conducted the operations of those who contributed to the adventure. This company never had any title or interest in . the property created by the m.oney of the individual contributors. The stock subscribed for was never paid in as capital. 'The money raised was paid out directly for construction, and not for shares subscribed for in the New York and St. Jago Steamship Company. The ship was built by individuals, not by a corporation. There was no person elected as president, or to any other office, and never a dollar of capital paid in, so far as it appears by the evidence.

[New York General Term,

November 7, 1864.

Proof of the amount.in which the subscribers to the stock of the Hew York and- St. Jago Steamship Company, other than the plaintiff, were in arrear in their payments was not material, and the evidence offered on this point was correctly excluded.

The offer to prove the sale of the ship to the United States government, and the price received, was wholly immaterial, except as the appropriation of the proceeds might be shown, for the purpose of establishing the participation of the defendants, who were partners in constructing the ship, in the proceeds of the sale, and thus showing their ratification of the proceeding whereby the plaintiff was excluded from the partnership property to which he had contributed.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Geo. G. Barnard, J. concurred.

Hew trial granted.

Leonard, Geo. G. Barnard and Sutherland, Justices.]  