Weston v. Watts , 29 N.Y. St. Rep. 289 ( 1890 )

Brady, J.

The statement of facts adopted as a correct exposition of the elements of the motion is a complete answer to the application to which it relates. The defendant, although designated to liquidate the affairs of the firm, does not appear to have done so, and was called upon to account in this action, and whether prematurely or not is of no consequence, so far as the application for the $25,000 or the balance of it on hand is concerned. This court has jurisdiction over the whole subject, and whether the respondent Weston was debtor to the firm, or to firm creditors, would necessarily appear by the judgment to be rendered herein. So far as the motion papers disclose anything upon that subject, it is quite clear that the respondent is not a debtor to the firm, but a creditor, and that the appellant is debtor to the firm. The appellant supposes that, having been selected to liquidate the affairs of the firm, he is entitled to the money received and deposited by him, whether the firm owes the amount of it or not, and whether the plaintiff Weston is entitled to it or not, and whether he (the defendant) is a debtor to the firm or not. Section 717 of the Code does not embrace or provide for an application such as made herein, under the facts revealed, nor do any of the authorities referred to by the appellant. The moneys in dispute are those of the firm, not of the defendant; and, assuming that the plaintiff Weston did not get them properly, strictly construing the agreement as to liquidation, nevertheless it might appear on the'accounting absolutely as it does now prima facie that they did in fact belong to the plaintiffs. It should be said, further, that although the moneys were taken from the custody of the defendant, and, from aught that appears, by the consent of the other partner, the respondent Weston seems to have paid, when called upon by the appellant, whatever sums were necessary to accomplish the liquidation. Indeed, the infirmity of the motion is so apparent that an apology would seem to be demanded for this elaboration of it. Order appealed from affirmed, with $10 costs and disbursements of the appeal. All concur.