
    (81 Hun, 581.)
    TANNENBAUM v. ARMENY.
    (Supreme Court, General Term, First Department.
    November 16, 1894.)
    1. Appeal—Reversal—Variance between Opinion and Findings.
    It Is no ground for a reversal that the court’s opinion and its findings do not coincide.
    2. Statute op Frauds—Part Performance.
    ■ Whether the amount paid on account of a verbal contract to purchase lands is so insignificant as not to take it out of the statute of frauds depends on the magnitude of such contract
    8. Pleading—Amendment on Appeal.
    Where evidence of facts not alleged in the complaint was introduced without objection, and judgment rendered thereon, the appellate court will amend the complaint to support the judgment.
    4. Partnership—Evidence of.
    Where plaintiff, to prove a partnership, showed that he had accused defendant of breaking the partnership agreement, which defendant denied, and that a writing was then signed by defendant to the effect that defendant “never said agreement was broken,” and that “there was a verbal agreement between the parties that in all mining interests they were partners from” a certain previous time, such writing was admissible.
    5. Same—Accounting.
    Where defendant transferred certain partnership property to a third person, his copartner is not obliged to rely on an action for damages, but may sue for an accounting, and compel a surrender of his share of the proceeds of such sale.
    6. New Trial—Mistake as to Issues.
    Where there was any misapprehension detrimental to either party during a trial in respect to the issues presented, the remedy is by motion for new trial, upon the ground that the moving party was misled in his consideration of the issues presented in the pleadings by the course both parties took at the trial.
    Appeal from special term, New York county.
    Action by Lippman Tannenbaum against Gyulo Armeny for an accounting. From an interlocutory judgment in favor of plaintiff, and from an order denying a motion to amend the answer made after trial and decision, but before entry of judgment, defendant appeals.
    Affirmed.
    The complaint alleged a copartnership for the establishment of certain mines, which defendant denied. Plaintiff introduced evidence to show that on a certain day the parties and others met in plaintiff's office, and, in the business discussion that followed, he accused defendant of having broken the partnership agreement, which defendant then denied. At that time and place the following writing was drawn up by plaintiff, and signed by defendant, and on the trial was introduced by plaintiff, as tending to prove the partnership: “Mr. Armeny never said agreement was broken. There, was a verbal agreement between Lippman Tannenbaum and G. Armeny that In all mining interests of precious stones that were discovered by either of them they were partners from the time they went together in the Hiddenite mine.” The mine in question was discovered subsequent to their association in the Hiddenite mine.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ. .
    Otto Horwitz, for appellant.
    F. Bien, for respondent.
   VAN BRUNT, P. J.

This action was brought to obtain an accounting between the plaintiff and the defendant as to certain alleged copartnership transactions. As to some of these, it was admitted that the parties were copartners; but, upon the trial as to the others, evidence was offered pro and con upon the question of copartnership; and the case was submitted, it being conceded that, if a copartnership was found by the court, an accounting would be necessary. When the learned court came to decide the case, he filed a memorandum to the effect that, under the pleading, it was admitted that a copartnership had been formed as to the subjects in controversy, the time of the duration of which was not specified; and that there was no evidence that the copartnership ever was dissolved, and that neither of the parties could dissolve the copartnership without the consent of the other, and, in fact, that there was no evidence that the copartnership ever had been dissolved. The memorandum further stated that he had found, as a matter of fact, that the mine in question was partnership property, and that there should be the usual accounting in actions of this kind. The attention of the justice having been subsequently called to the fact that there was evidence tending to show that the duration of the partnership was to be for a given time, in making his findings he found that fact. Subsequent to the filing of the memorandum above mentioned, and before the entry of judgment, an order seems to have been entered reciting the making of a motion upon the part of the defendant to amend his answer by denial of the paragraphs of the complaint referred to in the memorandum above mentioned, denying said motion; and from the judgment entered upon said decision, and from said order, these appeals are taken.

The fact that the opinion filed and the findings signed do not coincide in no way forms a ground for the reversal of the judgment, because the opinion cannot be referred to for the purpose of showing the incorrectness of the findings upon which the judgment is based. If there has been any misapprehension during the progress of the trial in respect to the issues which are presented, and which has been of detriment to either of the parties, the remedy is not by appeal from the judgment entered upon the decision rendered at the trial, but by motion for a new trial, upon the ground that the moving party has been misled in his consideration of the issues presented in the pleadings by the course which was taken by both parties at the trial. In the case at bar the court has found, as a matter of fact, the existence of the copartnership. It does not appear upon the face of the finding that it was because of any admission contained in the pleadings that it arrived at such conclusion; and there was, nevertheless, evidence in the case sufficient to sustain the finding, and this court cannot interfere with it upon that ground.

It is urged that, even if this be true, the agreement was within the statute of frauds, and therefore void. But there was evidence introduced which tended to show that there had been a partial performance of the agreement of copartnership, and thus the agreement was taken out of the statute of frauds. It is claimed that the amount alleged to have been paid by the plaintiff on account of the new enterprise was so insignificant that it could not operate in that direction. But the question of significance or insignificance depends upon the magnitude of the main subject; and in respect to that we have little or no information in this record. We think, therefore, under the findings which have been made, and which are justified by the evidence, that this judgment cannot be reversed.

It is further urged that this action will not lie in respect to the disputed property, as a court will not decree specific performance to perform and carry on a copartnership. But the relief which is granted to the plaintiff in this action is not for the specific performance of a copartnership agreement, but for a winding up of the same, and a division of the property upon a settlement of the accounts between the partners,—an action which has become quite familiar to the legal profession and to the courts. There seems to be no reason why, if the plaintiff could establish his rights as a copartner, he should not have the relief which has been granted to him in this case.

It is urged that there is a material variance between the agreement alleged in the complaint and the proof adduced by the plaintiff, the plaintiff alleging no time for the copartnership, and the court having found that it was to exist for one year; and that there were some discrepancies in the proof and allegations in regard to localities. These objections are of no avail upon this appeal, because, if there is any discrepancy between the allegations of the complaint and the findings and judgment of the court, the pleadings will be amended in order to support the judgment.

It is also urged that a certain exhibit introduced in evidence should not have been admitted for the purpose of aiding the claim of the plaintiff as to the existence'of a copartnership. The circumstances under which this exhibit was signed by the defendant were given. They certainly tended to support the claim of the plaintiff that a co-partnership existed; and, although the exhibit was not definite as to the terms of the copartnership, yet it was competent evidence, as an admission that there had been an agreement of copartnership between the plaintiff and the defendant, no matter what the terms of such copartnership might be. The attack which is made upon the verity of the document is one which the trial court considered, and he rightfidly placed great weight upon it in determining the issue upon which it bore.

The claim upon the part of the defendant that, assuming that the plaintiff had established a partnership, the refusal of the plaintiff to have anything to do with the mines after inspection of the samples submitted by defendant constituted a dissolution of the partnership, if one existed, and left the defendant free to embark with others in the mining schemes, is not well taken, for the reason that there was not a disclosure upon the part of the defendant of the true condition of affairs; it being claimed upon the part of the plaintiff that the fact that the defendant had bought this mine was not disclosed by him, and therefore there was no occasion for the plaintiff to make any determination in regard to the matter. He only expressed his opinion in regard to the samples which were shown. In order that a party can be bound by an election, he must be made acquainted with all the facts pertaining thereto.

Some point is made in regard to contradictory findings, and it is urged that a defeated party is entitled to have those taken which are most favorable to him, and may rely upon them in aid of his exceptions. But the variances which it is claimed occur in the finding in-no way assist the position of the defendant in regard to the matters in dispute, and some of the contradictions claimed are neither apparent nor real. .

The claim made that, the copartnership property having been transferred to another party by the defendant, the plaintiff must rely upon his action for damages, is not well taken. He has a right to compel a surrender of his share of the proceeds which have been received by the defendant upon the sale of the copartnership property.

There are no other exceptions which it seems necessary to note, and the judgment appealed from should be affirmed.

In respect to the order denying the motion to amend the pleadings, it is to be observed that it does not appear to have been made upon any papers. There is not even a notice of motion, so far as we have been able to discover, in the record; simply a bald order denying an amendment of the answer. No ground is presented for the granting of such a motion; and we can only imagine what the theory of the learned counsel was from what occurred upon the argument of the appeal from the judgment. As already intimated, if the defendant was entitled to any relief, it should have been sought in a different manner, and the order should therefore be affirmed.

The judgment appealed from must be affirmed, with costs, and the order affirmed, with $10 costs. All concur.  