Gorse v. Lynch , 72 N.Y.S. 1105 ( 1901 )

Conlan, J.

This is an action to recover the consideration expressed in a contract for the sale of the good will of a business. The parties were copartners, and the agreement for dissolution provided for the payment of a fixed sum on or before a -certain day. That day had passed when the action was brought The, defendant, in his answer, set up certain affirmative defenses, calling for an accounting between the parties as to the profits of the business and the apportionment to be made thereof between the parties, by way of indicating that plaintiff had received more than his share thereof over and above the amount demanded in the complaint as the consideration for the transfer.

This court has no equity jurisdiction to take and state an account between parties, and the rulings of the trial judge were, in our opinion, correct and proper. In an action for that purpose brought in a court of equity full justice could be done to any and all claims made by the defendant, and if any injustice were done to him by the judgment in this action he would have full remedy to correct the same. Under the agreement as it existed between the parties'at the time of the' commencmnt of this action, and the evidence as adduced upon the trial, the plaintiff’s right to recover was absolute, and the direction of a verdict in his favor for the amount claimed was a determination of the issues with which we are not inclined to interfere.

Judgment appealed from must, therefore, be affirmed, with costs.

Hascall and O’Dwyer, JJ., concur.

Judgment affirmed, with costs.