Squire v. Wing

In an action arising out of the affairs of a partnership, to recover at law from the estate of a deceased partner a certain sum claimed to be due to plaintiff, as the surviving partner, the plaintiff appeals (1) from an order of the Supreme Court, Kings County, dated June 12, 1962, dismissing the amended complaint for failure to state a cause of action (Rules Civ. Prae., rule 106, subd. 4); and (2) from the judgment entered July 6, 1962 on said order. Order and judgment affirmed, with $10 costs and disbursements. The general rule is that partners may not sue each other at law on any claim relating to the partnership unless there has been an accounting and balance struck or a promise to pay (Arnold v. Arnold, 90 N. Y. 580; Bankers Trust Co. v. Dennis, 256 App. Div. 495, affd. 282 N. Y. 635; Herrick v. Guild, 257 App. Div. 341). The amended complaint on its face reveals that there has been no such accounting or promise to pay. Plaintiff asserts, however, that the dissolution of the partnership by the death of his partner permits an exception to the general rule and relieves plaintiff of the necessity to account. In our opinion, neither the eases cited by plaintiff nor the dictates of common sense justify such an exception. We also are of the opinion that the Special Term did not abuse its discretion by failing to give plaintiff leave to amend his complaint to state an action at law, since plaintiff’s remedy lies in equity only. A subsequent action in equity, if properly pleaded so as to correct the defects in the present complaint, will not be barred by the judgment in this action (Joannes Bros. Co. v. Lamborn, 237 N. Y. 207; Unity Sheet Metal Works v. Farrell Lines, 130 N. Y. S. 2d 276, affd. 283 App. Div. 712). Ughetta, Acting P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur. [35 Misc 2d 287.]