The complaint charges that about April 9, 1884, plaintiff, defendant, and one Albert Seligman entered into a contract to purchase certain wire cloth at an auction sale; • that the defendant was to purchase said wire cloth in his own name, but on the joint account of the three,—himself, Seligman, and the plaintiff; each of the three was to pay one-third of the cost; that the cloth was purchased under said agreement by the defendant for $426, one-third of which amount, viz., $142, was paid by the plaintiff to the defendant. The complaint charges that the defendant has sold the said wire cloth, and has received the proceeds, and that the defendant has refused to settle with the plaintiff or return the $142,
There is no rule forbidding one partner from suing another at law in respect of a debt arising out of a partnership transaction, if the obligation or contract, though relating to the partnership business, is separate and distinct from all other matters in question between the partners, and can be determined without going into the partnership accounts (Crater v. Biniger, 45 N. Y. 545). In the present case, there was no partnership.
In Baldwin v. Burrows (47 N. Y. 206) it is said, “ Where several parties agree to purchase personal property in the name of one of them, and to take aliquot shares of the purchase without agreeing to sell jointly, there is no partnership.” Here, there was no agreement to sell jointly (so far as the complaint discloses) and the defendant sold the property without permission. The plaintiff
It follows, therefore, that the demurrer must be overruled, with leave to the defendant to withdraw the same within six days and answer over on payment of $10 costs.
See Sturges v. Judson, 1 City Ct. R. 256.