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ed to the sum of $34,540.88; and the said defendant took said goods and merchandise so remaining on hand, to wit, on the 1st March, 1856, pursuant to the terms of said agreement, and charged himself with the amount thereof (after making such deductions, including the deducting of five per cent., pursuant to the terms of said agreement), at the said sum of $34,540.88.
That said stock thereupon became, and was, and is, the property of said defendant, under and pursuant to the terms of said copartnership agreement, and that, in his accounts with said firm, said defendant is justly chargeable with said sum of $34,540.88, or such additional sum as will equal the whole prime cost of said stock, at the time of the death of said H. T., after deducting therefrom five per cent., pursuant to the terms of said agreement.
That said defendant, since the death of said H. T., has collected large sums of money out of the assets and choses in action of said concern, the amount of which the plaintiff is not able to state and does not know, which amounts are justly chargeable against said defendant in his accounts with said concern; and that the aggregate amount so collected by defendant, and amount of stock on hand so received and taken by him, deducting therefrom said five per cent., nearly or quite equals, and, as the plaintiff believes, exceeds the amount of the debts and liabilities of said copartnership, as aforesaid.
That said defendant represents, that said debts and liabilities have been mostly paid and discharged by him, for which amount, so actually paid and discharged by him, he is entitled to be credited in his accounting with said concern.
But the plaintiff alleges that she has no knowledge or information sufficient to form a belief (except from said
either partner, the other was to take the stock at five per cent, discount from inventory prices.
representations of said . defendant) whether or not said debts and liabilities have been mostly so paid and discharged, nor what portion nor what amount of the same have been so paid and discharged.
And the said plaintiff further alleges, that said defendant has not at any time accounted with said plaintiff or any one on her behalf, or agreed to purchase and take the other property and assets of said copartnership, including the real estate, stocks and bonds, store furniture, and debts due and owing said firm, pursuant to the terms of said copartnership agreement or otherwise.
That said defendant has not paid over to said plaintiff, as administratrix, &c., any moneys or other proceeds of said copartnership since the death of said H. T., except the sum of $3,505.57, in the aggregate; nor, in addition thereto, has he assigned, transferred or delivered over to her any of the assets, securities or other property of said copartnership, except two promissory notes, &c., [describing them,] which notes have been assigned and delivered over to or for the benefit of said plaintiff individually, to secure the payment of a certain promissory note of $4,351.28, made and executed by said defendant to her for so much money loaned by said plaintiff individually to said defendant, on or about the, &c., and after the death of the said H. T.
That, with the exception of the abovementioned notes, all the rest and residue of the properto stocks, bills, notes, book accounts, and other assets of said copartnership, are in the possession of and under the sole control and management of said defendant, and that he has been and still continues collecting the said notes and accounts, and reducing said property to money, as fast as the same can. conveniently be done, at his own discretion, and without accounting to the plaintiff therefor.
That recently, and within a few weeks last past, the said defendant has become embarrassed in business, and, as plaintiff is informed and believes, has stopped payment, and allows all his business paper and obligations, now falling due, to be protested, and that a large amount thereof lies under protest in one or more of the banks of the city of Troy.
That, on account of the embarrassment and insolvency of said defendant, he is not in a condition to give any security for the payment to said plaintiff, as the representative of said H. T., deceased, of the value of the interest of said H. T. in said copartnership.
And the plaintiff alleges that she has, in a friendly manner, requested of said defendant a statement and account of said copartnership transaction, which he, the defendant, refused to give, and she has offered him to settle and wind up the affairs of said late copartnership in the manner specified in said contract, which he refused to do, (or which he has neglected to do, though a reasonable time has long since elapsed ].
Wherefore the plaintiff demands judgment, that an account may be taken of all and singular the said copartnership dealings and transactions, from the time of the commencement thereof to the time of its dissolution, by the death of said H. T., and an account of the moneys received and paid by the said partners, respectively, in regard thereto; and also, that the said defendant may account with the plaintiff for all and singular his dealings with and transactions in regard to the property, assets and effects of said firm, since its dissolution, and the property sold or disposed of by him, either as surviving partner or otherwise, and of the moneys collected and received and paid out by him on account thereof; and that the defendant may be adjudged to pay the plaintiff, administratrix, what, if anything, shall, upon the taking of the said accounts, appear to be due her, as administratrix, &c., of said deceased partner, the said plaintiff, as administratrix, &c., being ready and willing, and hereby offering to pay the defendant, what, if anything, shall appear to be due him, on such accounting; and that some proper person may be appointed receiver, with the usual powers, to take into his possession and receive the property and effects of said late copartnership, and to collect and receive all moneys which may be coming to the credit of said late copartnership; and that in the mean time the said defendant may be restrained by order of this court from disposing of or in any manner interfering with the property and effects of said concern, or from collecting or receiving the copartnership debts or other moneys coming to said concern, or for such other or further relief as the court shall deem just and proper, with costs of action.
( No. 51.)
To dissolve a copartnership or joint ownership in a freight
ing vessel, praying an accounting and sale of the partnership, or joint property, and that the interest of defendant, one of three copartners, be charged with certain liens in favor of the other two, praying a receiver and injunction.
SUPREME COURT-COUNTY OF RENSSELAER.
Nathan N. Seaman and John J. Fuller
agt. Joseph M. Burch.
The complaint of the abovenamed plaintiffs respectfully shows to this court:
That on or about the 12th day of March, 1853, the above named Nathan N. Seaman, John J. Fuller, Joseph M. Burch and one John Clapper, purchased for the sum of $3,500, and became the joint owners of a barge or boat used in carrying freight up and down the Hudson river, called the Fishkill, each of said parties owning one undivided fourth part thereof.
That, being such joint owners, the said parties did, on the 15th day of March aforesaid, enter into articles of agreement and copartnership, in writing, a copy of which is annexed, marked A, and which forms a part of this complaint. That, pursuant to the terms of the said agreement, the business therein provided for was commenced and carried on during the season of navigation for the year 1853.
That, on or about the 21st day of September, 1853, the said John Clapper, for an adequate consideration, sold and disposed of all his interest in said barge and in said business to the said Nathan N. Seaman and Joseph M. Burch,