Martin, J. The ease as settled contains the following; “The foregoing are the minutes of all the testimony taken and proceedings had on the said trial.” An examination of the appeal book renders it quite manifest that the case as settled does not contain all the evidence given on the trial. Hone of the plaintiff’s exhibits, except the partnership agreement, are to be found in the case; nor are the defendant’s Exhibits A, B, C, D, and F set forth therein.
Under the practice as it now exists, it is the duty of the appellant desiring to review questions of fact to see that the case contains a certificate that all the evidence has been included, or all bearing on the questions sought to be reviewed, and, in the absence of such certificate, the general term will not review such questions. Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446; Wellington v. Improvement Co., (Sup.) 5 N. Y. Supp. 587; Dwight v. Railroad Co., (Sup.) 8 N. Y. Supp. 789.
We think there was no such certificate as the practice requires. If the above statement could be regarded as a certificate, it is not in compliance with the practice. The statement is that “the foregoing are the minutes of all the testimony taken and proceedings had,” not that the case contains all the evidence, or the foregoing is all the evidence, or all the evidence bearing upon the questions sought to be reviewed.
We are disposed to think that the case did not contain the certificate required by the practice,.and that the court is not required to review any finding of fact in the case where there was any evidence to support it. We have, however, examined all the evidence contained in the appeal book, and think it was sufficient to justify the findings of fact made by the referee.
The evidence discloses quite clearly that in the month of February of each year, from the commencement of the copartnership until and including February, 1889, an inventory of the partnership property was taken by the firm, the accounts of the partners adjusted, the profits of the business apportioned between them, and the interest of each partner in the assets of the firm ascertained and credited to him in the copartnership books as his new capital.
From the evidence before us we cannot say that the referee erred in treating these adjustments as binding upon the parties. When we examine the evidence bearing upon the findings of the referee, and his statement of the accounts between the parties subsequent to February, 1887, we fail to find any evi 199 dence that would justify us in disturbing such statement and findings.
We are also of the opinion that the referee was justified in finding that $1,973.56 of the accounts which constituted a part of the assets of the firm were of no value, and in deducting that amount from the firm assets to ascertain the true value thereof.
The plaintiff contends that the referee erred in holding that upon receiving the full value of his interest in the firm property on May 16, 1889, he ceased to have any interest in the partnership property, and it vested in the defendant, including the claim for $494.26 against Collins as principal and Dasey and Leahy as sureties. We think the plaintiff is right in this contention.
The partnership contract provided that when the rights of the parties should have been adjusted, either by agreement or by appraisers, the defendant should pay the plaintiff “his said just proportion and part of said property and effects, arrived at as aforesaid, when his interest ceases in the copartnership.” It will be observed that by the contract the plaintiff’s interest in the copartnership or its property was not to cease or vest in the defendant until the partnership matters were adjusted, either by agreement or by appraisers, as pointed out in the contract.
Before the commencement of this action the copartnership matters had not been adjusted, either by agreement or appraisers. Indeed, no such adjustment was ever had. Hence, when this action was tried, the plaintiff retained an interest in all the partnership property, including the claim against Collins and others, and had the same right to settle that claim that the defendant had. Robbins v. Fuller, 24 N. Y. 570; Gillilan v. Insurance Co., 41 N. Y. 376; Gates v. Beecher, 60 N. Y. 525; Van Doren v. Horton, 19 Hun, 9.
The parties have, however, waived the provisions of the agreement as. to the manner of adjusting their partnership matters, and have submitted their rights to the adjudication of the courts, so that a determination of the questions involved in this case will be conclusive upon them.
This being so, and the evidence bearing upon the question of the Collins claim being before us, we think the judgment should not be reversed, but modified so as to charge the plaintiff with theamount received on the Collins claim, instead of adjudging the claim to belong to the defendant.
That the plaiqtiff has received more than his full proportion of the property of the firm, besides the amount received on the settlement of the Collins, Dasey, and Leahy claim, was found by the referee, and the finding was justified by the evidence. Therefore the sum received by him on that settlement justly belongs to the plaintiff.
The judgment should therefore be modified by striking out that portion which awards the title to the claim against Collins and others to the defendant, and by adding to the amount of the defendant’s recovery the amount received by the plaintiff on such settlement, and, as so modified, affirmed.
Judgment modified by striking out the portion thereof which awards the title to the claim against Collins, Dasey, and Leahy to the defendant, and by adding to the amount of the defendant’s recovery the sum of $525, thus making the amount of the recovery by the defendant against the plaintiff the sum of $947.38, instead of $422.38, and, as so modified, affirmed, without costs to either party. All concur.
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