Van Brunt, P. J.
I cannot concur in the conclusion arrived at by Mr. Justice Daniels. The court below found upon competent evidence that upon the termination of the copartnership the accounts between the partners were settled and liquidated, and notes given for the balance due, and that there was no fraud or mistake by which such settlement could be impeached. The only evidence as to any mistake related to a claim for rent,—a single item. There was no proof of outstanding assets or other liabilities, and if there was only
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one unsettled item between the parties no accounting was necessary, as an action at law would be by one partner against the other, to recover one-half of the amount. There was no exception taken to the exclusion of evidence upon the ground that the evidence wras only competent upon an accounting, and this objection was made by both parties. The judgment appealed from should be affirmed, with costs.
Brady, J., concurs.