The plaintiff insists that his action is of exclusive equity jurisdiction and is entitled to the benefit of the ten years statute. If this be so, then, deducting the periods of suspension, the right of action was not barred.
The statute provides (2 R.S., p. 301, § 52) that actions not cognizable in courts of law shall be commenced within ten *Page 148 years after the cause of action shall accrue, and not after." But section 49, same title, further provides that "whenever there is a concurrent jurisdiction in the courts of common law and in courts of equity of any cause of action, the provisions of this title, limiting a time for the commencement of a suit for such cause of action in a court of common law, shall apply to all suits hereafter brought for the same cause in Court of Chancery;" qualified by section 50, that its provisions shall not extend to suits over the subject matter of which a court of equity had peculiar and exclusive jurisdiction, and which subject matter was not cognizable in the courts of common law.
It is insisted, however, that the plaintiff could have maintained an action of account at law at any time after the dissolution of the co-partnership, and hence the case was not one of exclusively equity jurisdiction.
I think it may be regarded as settled that an action of account could be maintained in this State, by one partner against another, before the adoption of the Code. (Duncan v. Lyon, 3 Johns. Ch., 351; Atwater v. Fowler, 1 Edw., 417; Ogden v.Astor, 4 Sand., 324); and in this State such action was not limited to mercantile partners, as at common law, but lay between partners in any business. (Kelly v. Kelly, 3 Barb., 419;Fowle v. Kirkland, 18 Pick., 299; 2 R.S., p. 385, § 49.) And it also lay by one or more partners against one or more partners. (2 R.S., p. 385, § 49.)
This action as between mercantile partners existed at common law. (Co. Litt., 172, a; Co. Jac., 410.) Coke says, "if two joint merchants occupy their goods and merchandises in common to their common profit, one of them, naming himself a merchant, shall have an account against the other," c. This language, COWEN, J., held, in McMurray v. Rawson (3 Hill, 65), should be literally followed, restricting the action to cases where there were but two partners, and holding it would not lie when there were more than two; citing Beach v. Hotchkiss (2 Conn., 430). Although this position was denied by DUNCAN, J., in Whelen v. Watmough (15 Serg. Rawle, *Page 149 153.) I do not propose to discuss the point because I consider the question disposed of, in this state, by our statutes. Their language is, "when any action of account shall be brought by one or more partners against another partner," c. (2 R.S., p. 385, § 49), showing clearly that the legislature contemplated that actions of account might be maintained when there were more than two partners.
The action of account being a part of the common law of England at the adoption of the Constitution of this State, in 1777, became, by that instrument, a part of the law of this State. In 1788, the legislature passed a statute entitled "An act for giving further remedy by action of account," somewhat defining and prescribing the practice therein, and in the revision of our statutes, in 1830, the legislature assumed that the action of account would lie; for they provide for a mode proceeding after judgment rendered that the partner account, or that the defendant account to the plaintiff, which renders the whole subsequent proceeding plain and simple to every one disposed to learn and understand the practice. (3 Bosw., 423.)
An action of account is also given by the Revised Statutes (2 R.S., p. 113, § 2) against executors in all cases in which the same may have been maintained by their respective testators; and administrators are made liable in the same manner as executors. (2 R.S., p. 113, § 3.)
It follows from these views that an action of account at law might have been maintained by the plaintiff against the intestate in his lifetime, and against the administrator since his death, for the claim sought to be enforced by this action. That being so, the period of limitation was six years; and that time having elapsed, after the right of action accrued, before the commencement of this suit, the claim was barred.
The judgment of the general term should be affirmed.
HOYT, J., was also for affirmance. SELDEN, J., did not hear the argument.
Judgment reversed, and judgment for plaintiff. *Page 150