Lobenthal v. Keller

McAdam, Ch. J. The defendant’s claim for contribution- is valid to the extent, of. $150 and interest, making together $168; but it is not the proper subject of counterclaim, because it grows out of an unsettled partnership [305] relation existing between Mm and the plaintiff’s assignor. The defendant has a suit now pending for an accounting, m wMch he may appropriately charge the above $168 against Ms partner in the adjustment of the accounts. The following authorities sustain these conclusions: Waterman on Set-off, 178, 179; Barbour on Set-off, 90; Story on Part. §§ 221-223; 3 Hill, 188; 27 Barb. 554; Story Eg. §§ 664, 665; 14 Johns. 318; 1 Hall, 180; 6 Barb. 537; 23 Id. 184; 4 N. Y. 186; 43 Id. 598; 54 Barb. 223; 1 Duer, 667. A counter-claim, even if used merely as a set-off, is in the nature of a cross action, which cannot be maintained at law, by one partner against another, until there has been a settlement had and balance struck. The theory of the equity smt is that because the partners have not agreed upon a balance the court should, after the accounting, declare one. The plaintiff, is, therefore, entitled to judgment for $384.04 with costs.