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That said copartnership business was entered upon and hath ever since continued to be carried on by the plaintiff and said defendants, in pursuance of and under said agreement, no other articles or instrument having ever been executed between them.

That, having much reason to be dissatisfied with the said defendant, A. B., and being desirous to dissolve the said copartnership, the plaintiff, on or about the, &c., caused a notice, in writing, to be delivered to the said A. B. and C. D., pursuant to said agreement, as follows, to wit: [Set forth notice.]

That said A. B. hath, from time to time, since the commencement of said partnership, applied to his own use, from the receipts and profits of said business, large sums of money, greatly exceeding the proportion thereof to which he was entitled, and, in order to conceal the same, the said A. B., who has always had the management of the copartnership books, has never once balanced the said books.

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That the plaintiff having, in the beginning of the year discovered that the said A. B. was greatly indebted to the said copartnership, by reason of his application of the partnership moneys to his own use, in order to impose some check upon the conduct of the said A. B., requested him that he would pay all copartnership moneys, that he received, into the Bank, in which said copartnership was accustomed to keep its accounts, and would draw for such sums only as said copartnership had occasion for; but the said A. B. wholly disregarded said request, and continued to apply the partnership moneys received by him to his own use, without depositing the same in said bank, or any other bank, to the credit of the firm, and has also taken to his own use moneys received by the clerks of said firm, and has, by such means, greatly in

creased his debts to the copartnership, without affording to the plaintiff, and said defendant C. D., any adequate means of ascertaining the true state of his accounts.

That the plaintiff has, by himself and his agents, from time to time applied to the said defendant, A. B., and requested him to come to a full and fair account, in respect of the said copartnership transactions, with which just and reasonable requests the said defendant has hitherto wholly refused to comply.

That said defendant, A. B., has, in fact, received the sum of $ and upwards beyond his due proportion of the partnership profits, and that he is nevertheless proceeding to collect in the partnership debts and moneys, whereby the balance due from him will be increased, to the great loss and injury of the plaintiff and the said C. D.

That the plaintiff has applied to the said defendant, C. D., to join him as plaintiff in this suit, but that said defendant has refused to do so.1

Wherefore the plaintiff demands judgment, that the said copartnership may be dissolved, and that an account may be taken of all and every the said copartnership dealings and transactions from the time of the commencement thereof, and also an account of the moneys received and paid by the plaintiff and defendants respectively in respect thereto. And that the said defendants may be adjudged to pay the plaintiff what, if anything, shall, upon the taking of such accounts, appear to be due to him, the plaintiff being ready and willing, and hereby offering, to pay to the said defendants, or either of them, what, if anything, shall, upon the taking of said accounts, appear to be due to them, or either of them. And that in the mean

1 If the consent of a party who should sue cannot be obtained, he must be made defendant, the reason being stated in the complaint. (Code, 110; see Pleadings, 133.)

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 $-.

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That said copartnership was carried on and continued until the 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

years, from

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

And that some

due to him from the said joint concern. proper person may be appointed to receive and collect all moneys that 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.]

(No. 50.)

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.,

deceased,
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

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