
    William F. Reeves, Plaintiff, v. James C. Bushby et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1898.)
    1. Pleading—On demurrer to counterclaim, defendant may attack complaint.
    In resisting a demurrer interposed to his counterclaim, a defendant may attack the complaint for insufficiency, except where the allegations, thus attacked, are expressly admitted in some part of his answer not demurred to.
    S. Partnership—Pleadings showing a partnership.
    Although an agreement, made between persons who intend to prosecute damage claims of owners abutting on an avenue where railroad viaducts have been built, provides that each person is to receive 25 per centum of the net receipts after deducting actual disbursements and necessary expenses and that such payment “ to each person shall be in full payment of all services rendered,” the question whether they are partners remains open; and where the complaint of one of them, framed as for the winding up of a partnership, alleges that the defendant, not a party to the agreement, has made advances to and is now a creditor therefor of the parties, and another party to the agreement, in answering the complaint, alleges that the plaintiff is liable to him for a share of his losses and prays a dissolution of the undertaking and for an accounting, it must be deemed to be conceded that the plaintiff is entitled to some equitable relief and counterclaims are admissible.
    3. Same—Counterclaims between partners—Neglect of duty—Limitations of rule.
    Counterclaims, which allege a claim for a share of the outlays or expenses incurred by a defendant in the business, are not enforcible as counterclaims, as such demands are the subject of the accounting to be had..
    Counterclaims for breaches of contract, in omitting or obstructing the performance of duties under the contract, are, when properly alleged, maintainable, but are not the subject of trial, under section 974 of the Code of Civil Procedure, where no damage is set forth and where there is no demand for affirmative relief.
    Statement of certain limitations to the rule that a counterclaim may be predicated upon a partner’s omission to do his duty.
    Demübbeb to counterclaims. The opinion states the facts.
    Edward C. James and Abram I Elkus (James, Schell, Elkus & McGuire, of counsel), for plaintiff.
    L. M. Berkeley and James C. Bushby, for defendant.
   Daly, J.

This action is brought for the winding up of a copartnership, alleged to subsist between the plaintiff and four of the defendants, which was formed for the prosecution of claims for damages to properties abutting on Park avenue, on the line of the new railroad viaducts. Three of the defendants are attorneys-at-law. The plaintiff is a civil engineer. One defendant agreed to furnish the services of a real estate expert, and the remaining defendant is alleged to be a creditor for money advanced for the joint enterprise to the parties interested. The plaintiff was to do all necesary work as civil engineer and procure evidence for the trial of actions,- and, with each of the other parties to the original contract, was to receive one-fourth of the receipts after deducting all expenses except that of the real estate expert. The plaintiff alleges that the attorneys have refused to accept Ms work and have ignored Ms rights, claiming that he has broken his contract; that they are incurring large expenses without Ms approval, and that he has done a large amount of work and been put to great expense, and performed labor and services worth $5,000; and prays for an injunction, receiver and accounting. The answer of the defendant Bushby, one of the attorneys, sets up, besides other matters, six counterclaims, to which the plaintiff now demurs, on the grounds, as to each, that it does not state facts sufficient to constitute a cause of action. The counterclaims are for one-fourth of the losses alleged to have been the result of the business; for violations by plaintiff of Ms agreement; for work done under the agreement by the defendant, and for advances of money made by defendant for the business at the request of plaintiff and the other parties in interest. The defendant in resisting the demurrer attacks the complaint for insufficiency. This he may do (Corning v. Roosevelt, 18 Civ. Pro. 399; 11 N. Y. Supp. 758; Williams v. Boyle, 1 Misc. Rep. 112; 48 N. Y. St. Repr. 713), except where the allegations of the complaint attacked as insufficient are expressly admitted in some part of the answer not demurred to. Village of Little Falls v. Cobb, 80 Hun, 20; Morey v. Ford, 32 id. 446. The defendants’ objection to the complaint is that the facts alleged give no right to equitable relief; that the contract set out does not constitute the parties to it copartners as between themselves, nor participants in a joint venture, nor liable for losses; but that it is merely an agreement for servicies, the compensation for which is to be measured by a share of the profits; citing the contract which says that each party is to receive 25 per centum of the net receipts after deducting the actual disbursements and necessary expenses, including the expense of procuring evidence for the trial of said actions, but not including any expense for a real estate expert,” which 25 per centum to each person shall be in full payment of all services rendered.” This last expression does not determine the character of the relation, which is to be gathered from the whole instrument and from the practical construction placed upon it by the parties themselves. While we find them agreeing that all are to be reimbursed out of the receipts for outlays (except in the case of the party who was to furnish the real estate expert, Ms outlay "being regarded as Ms contribution to the common cause), the contract is not specific as to whether, if there were no receipts or insufficient receipts, the “ actual disbursements and necessary expenses, including the expense of procuring evidence,” should be shared equally by all, or whether, in such a contingency, each party’s outlay was to be his contribution to the joint undertaMng. See Dooner v. Haws, 21 Misc. Rep. 639. The specific provision as to the outlay for a real estate expert has some significance on the point, but the parties have by their acts placed a practical construction upon the instrument which determines the question, for it is alleged that the defendant John Davis, not a party to the agreement, at the request of the plaintiff and the other defendants, advanced sums of money amounting to $1,400 to defray the expenses of the business and is now a creditor of the parties to that amount. TMs constitutes all the parties’ shares in the expenses and the losses consequent thereon in case the receipts proved insufficient to meet the expenses. It is proper also, in construing the contract under the objections of the defendant, to look at his own pleading where we find among Ms defenses that he claims that plaintiff is liable to him for a share of his losses, and prays for a dissolution of the undertaMng and for an accounting and an adjustment and liquidation of the several interests of the parties. It would seem, therefore, to be conceded by defendants that plaintiff is entitled to the eqmtable relief prayed for in the complaint. TMs requires an examination of the alleged counterclaims. Those wMch claim for a share of the expenses or outlays of the defendant in the business, allege matter not pleadable as a counterclaim or legal demand by one party in interest against the other, since such demands are the subject of the accounting to be had. As to the other alleged counterclaims for breaches of contract in omitting, or obstructing, the performance of duties under the contract, they might, if supported by proper averments and demand of relief, be sustained under the authority of Brown v. Dennison, 28 App. Div. 535. But they are not the subject of trial under •section 974 of the Code for want of a demand for affirmative judgment, and they fail to set forth any damage sustained, or to claim any damages. See Abbott’s Brief on Pleading, § 211. "With respect to the authority above cited for a counterclaim of this character in a partnership accounting, which counterclaim is based upon an alleged omission of duty on the part of the plaintiff, the following considerations present themselves: Heglect of duty by a co-partner gives to the other partners in interest a right to terminate the copartnership. If they do not choose to avail themselves of this right, and continue to carry on the concern with the delinquent, it would seem that they have no claim against him for damages unless they are put to some expense to make up for Ms omissions. Such expense, however, would be in no sense the subject of a counterclaim, because, like all other disbursements on behalf of the copartnersMp, it would be allowed upon the accounting; and so, if any loss to the partnership has occurred by a copartner’s neglect, if it can be measured in dollars and cents, that also may be charged against him on the accounting. If, therefore, tMs defendant had alleged facts sufficient to charge the plaintiff with damage, or loss, still there would have been no counterclaim in the proper sense of the word pleaded in the answer. The case of Brown v. Dennison, above cited, was decided on the authority of More v. Rand, 60 N. Y. 208, holding that a counterclaim for damages for fraud in inducing the defendant to enter into the copartnership was pleadable against the plaintiff.in his action for an accounting. But this, of course, was because such a claim could not be made the subject of a charge against the plaintiff upon the accounting, and is very different from the so-called counterclaims in Brown v. Dennison and in this case.

Demurrer sustained and judgment ordered thereon for plaintiff, with costs, with leave to defendant to amend on payment of costs.

Ordered accordingly.  