Fogarty v. Fogarty , 126 N.Y.S. 4 ( 1910 )

Per Curiam:

We are entirely satisfied with the conclusion reached by the trial court that the conveyances, assignments and bill of sale were given to secure the payment of plaintiff’s indebtedness for moneys theretofore loaned to him or others, the payment of which he had assumed, or thereafter to be loaned to him by the defendant individually or as agent of the plaintiff and others, and that the plaintiff is entitled to have such property reconveyed and retransferred on payment of the sums loaned with interest. And for the purpose of ascertaining what amount, if anything, is now due, the court properly directed an accounting of the moneys loaned by the defendant to the plaintiff, the amounts repaid, and also the moneys received by the defendant from the property conveyed and transferred to him by the plaintiff,- including that from the business of the two liquor saloons located respectively at the southeast corner of Ninth avenue and Seventeenth street and No. 14 Spring street, and the O’Reilly property at 215 West Seventeenth street. As to who constituted the firms of Tuttlé, Fogarty &¡ Co. and P. A, Fogarty & Co., or the accounts of such firms were issues not before the court. There is not a reference in the pleadings to such subjects and the court could not, against defendant’s objection, make a binding ad j udi cation as to such firms or direct them to account. And the same is equally true as to the. property located at 423 West street, New York, and the alleged agreement as to the division of profits of the business there carried on. The findings as to all of such matters were irrelevant and must be disregarded, and the judgment modified by striking from it any and all adjudicatioh or reference to such .subjects. The judgment is, therefore, modified as indicated in the foregoing memorandum, and as thus modified affirmed, without costs to either party. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Judgment modified as stated in opinion and as ■ modified affirmed, without costs. Settle order on notice.