
    Matilda Teschemacher, Resp’t, v. August Lenz, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 14, 1894.)
    
    1. Trial—Findings.
    Where, in total disregard of the practice relating to a reference under an interlocutory judgment, or the questions which alone are for the referee to-pass upon, counsel masses a great number of requests in such a way that the referee cannot be expected to entertain, much less pass upon them, he is not obliged to do so.
    2. Partnership—Accounting.
    The complaint, in an action for an accounting, need not specify the particulars as to which an inquiry will be made.
    3. Evidence—Parol.
    Parol evidence is admissible to show that real estate, bought with firm money for the use of the firm, is firm property, though the title is taken in the name of an individual member.
    Appeal from an interlocutory and final judgment in favor of plaintiff.
    
      John Fennel, for app’lt; Henry W. Smith, for resp’t.
   O’Brien, J.

The plaintiff, claiming to have been the partner of the defendant from December, 1885, until the fall of 1890, brought this action for a dissolution of the firm and an accounting. The partnership was denied, but upon the trial at special term the learned judge found in favor of the plaintiff’s contention that there was a copartnership, which commenced in December, 1885, and terminated on the 26th of September, 1890, and referred the matter of the accounting to a referee. No exceptions were taken to the admission or rejection of evidence on the trial, nor were there any requests to make findings of fact or conclusions of law presented to the judge on behalf of the defendant, and no exceptions were filed to the findings of fact and conclusions of law made by the judge. When the plaintiff rested, defendant moved to dismiss the complaint on the ground of the insufficiency of the proof in regard to the copartnership, which motion was subsequently renewed at the close of defendant’s case. Both motions were denied, and exceptions taken, which were the only exceptions presented in respect to the proceedings at the trial. Thus the only question as to the interlocutory judgment presented for review is whether the judgment produced upon the trial was sufficient to sustain the judgment. In addition to the plaintiff, five other witnesses were examined, all of whom gave evidence more or less weighty tending to support her testimony as to a copartnership between the parties; and it was not error, therefore, for the judge to deny the motion to dismiss the complaint. The evidence adduced by the defendant denying such copartnership presented á question of fact upon conflicting evidence, and upon a review thereof we do not think it can be justly claimed that the weight of such evidence was so clearly in favor of the defendant that we should interfere with the conclusion reached by the learned trial judge upon this disputed question of fact.

The more serious questions are those which were presented upon the accounting before the referee and upon exceptions filed to his report. The principal exceptions are those relating to the referee’s findings of fact and conclusions of law, upon the ground that such are contrary to the evidence and the law. The appellant insists in addition that the referee made erroneous rulings upon the admission and rejection of evidence, but an examination shows that no substantial error in any way affecting the result was made, and these must be regarded, therefore, as untenable.

The defendant presented to the referee forty requests, which he no doubt wished to have found as findings of fact, and twenty-seven conclusions of law, which the referee refused—very properly, as we think—to pass upon. There had been a trial upon the issue as to whether or not a copartnership did or did not exist, and that was settled by the interlocutory judgment But, entirely disregarding such judgment, the counsel for the defendant upon the reference called out on cross-examination of plaintiff’s witnesses all the facts that he could elicit on this point, and many of his exceptions to the admission and rejection of evidence, and most of his requests to the referee, were to obtain from him a decision reversing the interlocutory judgment upon this question, and requiring a finding upon practically every separate piece of evidence that appeared in the record. Very few of these requests were pertinent, or put in any such shape that the referee could pass upon them conveniently; and where, as here, in total disregard of the practice relating to a reference under an interlocutory judgment, or the questions which alone were for the referee to pass upon, counsel masses a great number of requests in such a way that the referee could not be expected to entertain, much less pass upon, them, he is not obliged to do so. Davis v. Leopold, 87 N. Y. 620; Sniffen v. Koechling, 45 N. Y. Supr. Ct. 61. Nor does the omission to pass upon the few requests that were pertinent affect the validity of the decision or report. Code Civ. Proc. § 1023. The defendant was in no way injured by such refusal or failure, because the referee in his report found upon every question submitted to him, and those findings, with his conclusions to which exceptions were filed, present all the questions' that the defendant could have raised by exceptions to the refusal of the referee to find such of his requests as were pertinent.

From the testimony and the report it appears that the parties engaged in the business of sausage making, at first in a small way, and'that they kept no books of account of the firm’s transactions; that the money taken in during the week was laid in the safe in the store, the expenses being paid-from this money as they accrued, and that on Sunday or Monday of each week the week’s accumulations were counted up, the outstanding bills paid, and the remainder or net profits of the business were laid in a separate compartment of the safe. The referee found that at the commencement of the business the defendant contributed $700 and the plaintiff $200, and to this finding the defendant excepts, upon the ground that it is conceded that the $200 was never so contributed by the plaintiff. As a matter of strict accuracy, the appellant is right, the testimony showing that the plaintiff had $200 for contribution, but that it was never actually contributed, because, according to hez1 statement, the defendant requested her to hold it until it should be needed. No injury has been done the defendant, however, with respect to this $200, because, although the referee finds that it was contributed, it is deducted from the amount coming to" her, so that, she being both credited and debited with it, the one offsets the other, the referee expressly holding that she was not entitled to be allowed that amount on the division of the proceeds of the copartnership. There is some evidence showing what moneys had been accumulated as profits of the business, and what division thereof between the parties had been made down to April, 1888, and that from this latter period to October 1st in the same year no profits were made. From October 1, 1888, to May 1, 1890, a period of eighty-three weeks, the referee finds that the average weekly net profits were $154.28, and to this finding the appellant most strenuously objects, upozi the ground that it is entirely unsupported. In this sweeping statement we think the appellant is in erroz-. It is trzie that the testimony upon this point is very unsatisfactory, and somewhat problematical; but the plaintiff and one other witness gave testimony as to the variations in the profits during a period of seven weeks, and the referee’s conclusion was reached by taking all of such amounts, and dividing the total by seven, thus obtaining the average weekly profits. This was the best testimony that it was in the power of the plaintiff to furnish. No books, as stated, having been kept of the firm’s transactions, and the defendant having taken and appropriated all the money, she was not in a position to give any more definite or satisfactory evidence; and, in the absence of any different statement or account by the defendant, she should not be deprived of- what, upon even slight evidence, the referee was justified in finding had been earned in the business. It having been found that the defendant was a partner, if the testimony of the plaintiff is to relied upon at all, the conduct of the defendant was most reprehensible, he having put the business from the vei’y outset in his own name: and, though the plaintiff was engaged with him in securing profits out of the business, these, when accumulated, were taken and appropriated by the defendant, and, except in two' instances prior to Octobez’, 1888, without rendering any account or giving any satisfaction to the plaintiff for her share or portion thereof. It is also found that in 1888, with the funds of the partnership, in addition to $2,000 contributed by the plaintiff, real estate was purchased, the title to which was taken in the name of the defendant, for which the appellant insists he should not be held accountable, and in which he claims the plaintiff should have no interest. There are certain facts which militate against plaintiff’s statement that this was purchased out of the partnership funds under an agreement that it was to be partnership property, notably the fact that for the $2,000 which she advanced on property taken by the defendant she received from the latter a mortgage, upon which, from time to time, she was |¡aid the interest, and subsequently the principal. This she exp.ains, however, by her testimony that the defendant induced her to permit the property to be taken in his name, and that until surtí time as it could be arranged to be taken in their joint names the Mortgage was given her as security for the moneys that she advanced. We see no reason to differ with the conclusion reached by the referee upon the facts here appearing as to.the manner in which the property was bought, the uses to which it was put, and the -occupancy of a portion of it for the conduct of the business and as a home for the parties, it being entirely within his province, upon the conflict presented on the question as to whether this real estate was or was not partnership property, to conclude in favor of the plaintiff. The rents of this property, though sometimes collected by the plaintiff and sometimes by the defendant, were all retained by the defendant, and though it was found that the partnership terminhted on the 26th of September, 1890, the referee, upon the accounting, allowed the plaintiff her proportion of the rents down to the date when the property was sold, and also credited her with her proportion of the profit realized upon the sale of the house. This the- appellant also claims to have been an error, upon the ground that the accounting should not be extended beyond the termination of the copartnership, in September, 1890, as found by the interlocutory judgment. There is no force, however, in his argument, because it is perfectly clear that, while there could be no accounting between the parties in regard to the profits of the business subsequent to the date named, this is an entirely different question from permitting a recovery of what was realized from the use or sale of partnership property acquired prior to the date of dissolution. If instead of real estate there had been horses and wagons, or money in bank, at the date of dissolution, it could hardly be claimed that the defendant could take possession of these, and by renting out the former, or obtaining interest upon the money, retain all these upon the ground that he was not obliged to account therefor, or for anything subsequent to the date of dissolution. In addition the appellant claims that an inquiry into or accounting for the real estate was improper upon the reference, upon the grounds: First, that the particular transaction was not set out in the complaint; and, second, that all transactions relating to real property must be in writing. As to the first, it was no more éssential to set it out in the complaint than it would have been to have claimed that the partnership had purchased a horse, or any other property, it being pertinent on the accounting to determine just what property the partnership had acquired; and that this claim as to the real estate was not an afterthought is shown by the inquiry entered into in reference thereto upon the trial at special term. As to the second, it has been held repeatedly that real estate bought with firm money for the use of the firm is firm property, though the title be taken in the name of an individual member, Baxter v. Bell, 86 N. Y. 195; Collumb v. Read, 24 N. Y. 505, and this fact may be proved by paroi evidence; the statute does not apply. Fairchild v. Fairchild, 64 N. Y. 471. The sole question thus presented is whether the evidence produced sustains the findings of the referee, and whether those findings sustain those conclusions of law, and upon this we find no reason to disturb the decision of the referee.

Another finding of the referee, excepted to, is that in the month of October, 1888, plaintiff sold to the copartnership merchandise, for which the firm agreed to pay her $300, and upon account of which she was paid the sum of $60. The value of. such property upon the reference was positively testified to by the plaintiff to have been worth the sum found by the referee, and, though it was found that upon the trial a lower value was placed upon it, it was competent on the reference, there being no testimony to the contrary, for the referee to accept the plaintiff’s version. In saying that the referee was at fault in finding that $60 was paid upon the goods so sold the appellant is strictly accurate, the testimony being that the defendant did not pay her any money, but instead thereof did discharge a debt which she had incurred in Brooklyn, and which she stated amounted to $50. The difference'between the amounts is small, and is in defendants favor, and therefore he has no right to complain of a view taken by the referee most favorable to him upon the question of the payment and its amount. The most unsatisfactory item of credit allowed the plaintiff is in regard to the $3,000 for the good will of the business. The plaintiff testified that such, in her opinion, was the value of the good will, and this was supported by another witness, who, however, was in no way shown to be competent, and whose testimony upon this question is of very little value. In addition, however, the referee has found that the average weekly profits amounted to $154 a week, and this, together with such testimony as was presented, was some evidence, however meager, upon which to base the finding as to the value of such good will. Upon this question we can but repeat what we have already said. If the best testimony that the plaintiff could give was furnished, as is here shown, and if, as here appears, the defendant failed to meet the case presented against him, abandoning the controversy, and leaving ins counsel to wage a contest practically alone with the plaintiff and her wit nesses, presenting no denial or account, he has no cause to complain if, from such evidence as was furnished, with a view to giving the plaintiff her full rights in the property acquired by their joint energy and" labor, the referee has not exceeded his power in reaching conclusions based upon reasonable inferences. The plaintiffs testimony on all the items included upon the accounting was as clear as the nature of the transactions and the manner in which the firms dealings were conducted rendered possible, and in most of her claims she is supported by other witnesses; while on the other hand, the defendant does not himself appear for examination, and presents but a single witness, who knew nothing of the firm’s business; and such testimony, with the production of the bank books showing the deposits made by the plaintiff, together with the fact that she received a mortgage in her own name upon the real estate, is the only evidence presented to destroy the force of plaintiff’s case. We do not think that she should be punished for the defendant’s wrongful acts in appropriating without accounting to her all the moneys and assets of the firm, including the good will, and then, when in that position, refusing to be examined, or present any account, or make any showing as to the amount or disposition which he had made of the copartnership property, relying seemingly upon the plaintiff’s inability, in the position in which she was placed, ever to present a satisfactory statement upon which she might base her right to recover her just proportion of what resulted from the joint enterprise. In the view of such an attitude assumed by the defendant, he is not in a position to invoke the court’s aid in preventing the plaintiff from •getting what justly belongs to her. Upon the whole case, therefore, we do not think that we should seize upon technical or captious objections to disturb a judgment which seems to be right and just. Judgment affirmed accordingly, with costs.

Van Brunt, P. J., dissents. Follett, J., concurs.  