Opinion
June, 1907.
Present — Patterson, P.J., McLaughlin, Laughlin, Houghton and Lambert, JJ.
On a former trial the plaintiff's complaint was dismissed, and on appeal to this court ( 86 App. Div. 33) the judgment was reversed as against the weight of evidence. On the second trial the facts adduced by the defendant did not materially vary from those which he proved upon the first trial. The plaintiff not only proved all that he was able to establish upon the first trial, but added new facts corroborating his contention. Amongst them was the fact that nearly a year after the alleged absolute dissolution of the copartnership an action was brought by the plaintiff and defendant as copartners, for goods sold, in which the complaint alleged the continued existence of the copartnership. The complaint in that action was verified by this plaintiff, but in the same action the defendant signed a bond of indemnity as one of the plaintiffs therein, and presumptively he knew the form of the action and its object. In addition, certain facts favorable to the plaintiff were proven by the witness Courtney, whose testimony was not given upon the former trial. We think the evidence did not warrant a dismissal of the complaint by the trial court, and that upon the facts established before him he should have decreed that the assignment given by the plaintiff to defendant was as security only, and should have ordered an accounting of the partnership business. Concededly, the partnership had existed; and if the assignment by the plaintiff to defendant was not absolute, but as security for defendant's advances to the firm only, plaintiff still had an interest after those advances were paid, in any surplus assets of the firm. There was prima facie proof that such surplus assets existed. The judgment dismissing the complaint must be reversed both on the law and the facts, and a new trial granted with costs to the appellant to abide the event.
Judgment reversed and new trial granted, with costs to appellant to abide event.