« ΠροηγούμενηΣυνέχεια »
time the said defendant, A. B., may be restrained by the order of the court from collecting or receiving the partnership debts or other moneys, or for such further, &c., [as in No. 1.] [A prayer for receiver may be added, if necessary.]
( No. 49.)
For an account of partnership dealings after dissolution, and for a receiver, and also for an injunction to restrain the defendant from receiving any of the partnership debts.
Title of the Cause.
The plaintiff complains of the defendant and alleges the following facts, constituting his cause of action:
That on or about, &c., the plaintiff and defendant entered into copartnership together as manufacturers of, &c., [stating generally the business,] the plaintiff engaging to bring into the business the sum of $— and being to receive onethird part or share of the profits, and the defendant engaging to bring into the business the sum of $_and being to receive two-third parts or shares of the profits.
That the plaintiff accordingly brought into the business the said sum of $
—and the defendant brought into the business the said sum of $
That said copartnership was carried on and continued until the — day of when the same was dissolved by mutual consent, and the usual advertisement of such dissolution was inserted in the
Gazette. That the said copartnership business was carried on in a building in — which at the time of the dissolution of said copartnership was held by said partners under an
agreement for a lease for
and it was verbally agreed between said partners that the defendant should take to himself the benefit of the said agreement, accounting to the plaintiff for his proportion of the value thereof, and in pursuance of such agreement the defendant has ever since continued, and now is, in possession of said building.
That no settlement of the copartnership accounts has ever been made between the plaintiff and defendant, though the plaintiff, since the dissolution, has repeatedly applied to the defendant to come to a final settlement with respect thereto, which the defendant refuses to do.
That the defendant has possessed himself of the partnership books, and has refused, and still refuses, to permit the plaintiff to inspect the same, and has also refused to render the plaintiff any account of the copartnership moneys received by him.
That the plaintiff, since dissolution, has paid the sum of $- on account of the partnership debts.
And the plaintiff alleges, on information and belief, that upon a true and just settlement of said accounts, a considerable balance is due from the defendant to the plaintiff in respect of their said copartnership dealings; but that, nevertheless, the said defendant is proceeding to collect in the said copartnership debts, and to apply the same to his own use, which he is enabled to do by means of his possession of the books of account, as aforesaid.
Wherefore, the plaintiff demands that an account may be taken of all, and every, the late copartnership dealings and transactions, and that the said defendant may be adjudged to pay to the plaintiff what, if anything, shall appear upon such accounting to be due from him, the plaintiff being ready and willing, and hereby offering, to pay to the defendant what, if anything, shall appear to be due to him from the said joint concern. And that some proper person may be appointed to receive and collect all moneys
may be coming to the credit of the said late copartnership. And that the defendant may in the mean time be restrained, by the order of the court, from collecting or receiving any of the debts due and owing thereto, or for such further, &c., [as in No. 1.]
By administratrix of deceased partner, against surviving
partner, who has had the sole control of partnership property and assets since the death of the intestate, but has become embarrassed and insolvent, praying a full account of partnership dealings before as well as since the death of the intestate, and for an injunction and receiver.
SUPREME COURT - COUNTY OF RENSSELAER.
E H. T., Administratrix, &c., of H. T.,
agt. G. L E
The abovenamed plaintiff, who has been duly appointed by the surrogate of Rensselaer county, and has been duly qualified to act as administratrix of all and singular the goods, chattels and credits of H. T., deceased, complains of the defendant, and alleges, that on or about the 15th day of July, 1843, the said H. T., and the defendant G. L. E., entered into an agreement to form a partnership as traders and merchants in the city of Troy, under the firm name of H. T. & Co., which agreement was reduced to writing and signed and sealed by said partners, and is in the words and figures following, to wit: [ Set forth the agreement.]
That the said copartnership business was entered upon, pursuant to said agreement, and was continued to be carried on, under and pursuant to the same, up to the time of the death of said H. T., which occurred on the, &c.
That said H. T., in his lifetime and during the continuance of said copartnership, advanced large sums of money towards the capital stock of said partnership, and that said firm, during all the time of the continuance of said partnership, carried on an extensive and lucrative business in the buying and selling of iron, and articles manufactured of iron, and realized large profits therefrom, the amount of which the said plaintiff has not been able accurately to ascertain, and cannot with certainty state.
That, at the time of the death of said H. T., there was on hand a large amount of personal property, consisting of stock on hand of the estimated value, at cost prices, as per inventory of the same, taken on the 1st day of February, 1856, of about $40,000; stock, furniture and fixtures of store, of the estimated value of $1,000; real estate, situated in the counties of Albany, Saratoga and Essex, consisting of houses, lots, nut factory, ore beds and land, of the estimated value of about $12,000; bonds and stocks to the nominal amount of about $26,000; bills receivable and ledger balances, and accounts of the aggregate amount of about $220,000, making the whole amount of the real and personal property and nominal assets of said copartnership, at the time of the death of said H. T., about $300,000, and that the debts and liabilities of said concern amounted to about the sum of $108,000, and that the balance, deducting therefrom the bad and allowing for doubtful debts, and also depreciation of property, bonds, stocks, &c., represented the then present worth and value of said concern, amounting, according to the best of the knowledge, information and belief of said plaintiff, to not less than the sum of $90,000.
That, as plaintiff is informed and believes, at the time of the death of said H. T., he was in advance of his said copartner in drawing out of said concern about the sum of $5,800, and that after allowing said defendant to equalize his individual account in that amount, the said defendant and said H. T., under their said partnership agreement, were each entitled to share one-half in the capital stock, profits and then present value of said concern, after the payment and discharge of its debts and liabilities, as aforesaid.
That, after the death of said H. T., the said defendant continued, individually, and still continues, in the possession of said store, stock, personal property and choses in action, except as hereinafter stated, and to manage and carry on said business, and has so continued down to the present time, and continued to sell and dispose of said stock, and collect said debts and choses in action, and to pay the debts and liabilities of said concern, as they became due, out of the avails of said concern.
That an inventory was taken of said stock, under the direction of said defendant, as of the 1st day of February, 1856, which amounted in the aggregate, estimating the value of the articles at prime cost, to the sum of $40,400.91; and that, deducting therefrom merchandise sold while taking said inventory, and between said 1st February and the day when said inventory was completed, and certain unimportant errors in price, and deducting also five per cent. on such amount, said inventory amount