Edwin S. Chapin and Albert K. Chapin were brothers, and from the year 1886 until the 1st day of May, 1896, were copartners in business as stockbrokers, Edwin S. Chapin having contributed $100,000, the entire capital of the firm. He died on the 3d day of September, 1901, leaving a last will and testament, in which the plaintiff and the defendant were appointed executors.
This action was brought by the plaintiff against his co-executor, individually and as such co-executor, for a copartnership accounting. The only items in dispute brought up for review in this court appear upon the ledger of the firm under the head, "A.K. Chapin, New York Stock Exchange Seat." It commences with the charge under date of January 20, 1887, "to cash, $30,110," then follows the charging of interest and the crediting of payments made from time to time until May 1, 1895, when the balance was $37,078.80. These entries in the book are in the handwriting of the defendant, and it is, therefore, claimed on behalf of the plaintiff that it establishes an indebtedness on his part individually to the firm in the amount stated in the account. Such, doubtless, would be the *Page 406 inference to be drawn from the fact that the account appears upon the books of the firm, had the case been rested upon this evidence. But it appears that the defendant was desirous of becoming a member of the Stock Exchange, and that, under the rules of the exchange, he was required to show that he had purchased a membership and paid therefor, and that he did not owe anything by reason of such purchase. It also appears that on the 6th day of January, 1887, Edwin S. Chapin executed to him a general release of all claims and demands whatsoever in law and equity, and "more particularly by reason of an advance of the sum of $29,000 made to the said Albert K. Chapin to enable him to purchase a membership in the New York Stock Exchange." It further appears from the plaintiff's own showing that after the death of Edwin S. Chapin the defendant made a statement in the presence of two or three persons to the effect that he was owing his brother for the money advanced to him to purchase his seat on the Stock Exchange, and also by a letter written by him to his brother before his death, in which he stated:
"Understanding that you are thinking of appointing me one of the executors or trustees under your will upon your decease, and being now indebted to you on account of the purchase money of my seat in the New York Stock Exchange, I do most cheerfully hereby agree to act as such executor or trustee, or both, under your will, if so appointed thereby, without any commission or compensation other than a release by your will or otherwise from so much of my indebtedness as would equal the commission or compensation to which I should otherwise be entitled.
"Yours affectionately, "A.K. CHAPIN."
There is other evidence in the case, but that to which I have called attention is sufficient to present the question which, I think, disposes of this case.
The referee has found as a fact "that the sum of $37,078.80 *Page 407 appearing on the books as `A.K. Chapin Stock Exchange Seat' represented moneys advanced by the plaintiff's testator to the defendant in the month of January, 1887, to enable him to purchase a seat in the New York Stock Exchange," and further "that the Stock Exchange seat so purchased by the defendant with the money so advanced was his own individual property and was not partnership property belonging to said firm." The item was, therefore, rejected as a copartnership claim against the defendant and the judgment entered thereon has been affirmed by the Appellate Division. Inasmuch as our jurisdiction is limited by the Constitution to the review of questions of law we are concluded by these findings and the affirmance by the Appellate Division, unless, as a matter of law, there was no evidence to sustain the finding. This, I think, cannot properly be held. The release to which we have referred recites the advancement of the money for the purchase of a membership in the Stock Exchange by Edwin S. Chapin. It is signed by him individually and not by the firm. It was filed with the Stock Exchange. It was so executed and filed for the purpose of showing to the exchange that Albert K. Chapin was freed from any indebtedness by reason of the loan, so as to qualify him to become a member of the exchange and thus make him solvent and able to perform financially his obligations to his associates in the exchange. If the loan had been made to him by the firm and it was a firm obligation, then the indebtedness was not discharged and the effect of the release would be to deceive the officers of the exchange with reference thereto. The admissions proved by the plaintiff to have been made by the defendant both orally and by his letter referred to are admissions of his liability to his brother Edwin S. Chapin individually and are not an admission of indebtedness to the firm. The entry upon the books of the firm does not state it to be a firm charge, but is entered under the name of "A.K. Chapin New York Stock Exchange Seat," which, were it not for the fact that it appears upon the company's book, would be consistent with the findings of the referee. As we have seen, the capital *Page 408 for the copartnership was wholly contributed by Edwin S. Chapin. It does not appear upon the general account between the copartners that the sum of $29,000 or of $30,110 was ever drawn from the assets of the firm by Albert K. Chapin for the purpose of purchasing the Stock Exchange seat. The only reference to those items is in the account, to which reference has been made. The theory of the referee apparently was that it was a special account, entered for convenience upon the books in order that the defendant's liability to his brother might be perpetuated, and I think it cannot be properly held that there is no evidence or inferences to be drawn from the facts shown to support this theory. Whether or not the plaintiff can recover the amount of the defendant upon an action brought by him for that purpose, as a claim owing by the defendant to the plaintiff's testator individually it is not necessary to now determine. This action was for a copartnership accounting. The item, not being a copartnership claim under the findings, the judgment should be affirmed, with costs.
EDWARD T. BARTLETT, VANN and CHASE, JJ., concur with HISCOCK, J.; CULLEN, Ch. J., and GRAY, J., concur with HAIGHT, J.
Judgment reversed, etc.