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and 140 New York State Reporter

HOEY v. FECHTENBERG. (Supreme Court, Appellate Term. November 29, 1907.) 1. PARTNERSHIP-DEBTS OF PARTNERSHIP-PROFITS-OVERDRAFT.

Where partnership articles provided that defendant and another partner might draw $500 a month on account of prospective profits until June 30. 1905, and that thereafter defendant could draw an additional $500 a month, if in the judgment of the partners the business warranted such payments, and that the amounts so drawn should be charged against the shares of the profits of the parties withdrawing the same, an overdraft by defendant on account of profits unearned constituted a liability of de fendant to the firm, which passed as an asset on a transfer of the firm's property and business to a corporation.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Partnership, $ 95.] 2. ESTOPPEL-REPRESENTATIONS.

Where defendant, a member of a firm, kept its books of account, on which appeared an overdraft of profits unearned by him at the time the firm's business and property was transferred to a corporation, the record of such overdraft in the firm's books constituted an implied promise on defendant's part to pay the same, precluding him from claiming as a defense against the corporation that he originally withdrew the money under a claim of right.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Estoppel, $8 218234.] Appeal from City Court of New York, Trial Term.

Action by James J. Hoey, as temporary receiver of the Scaglioline Brick & Fireproofing Company, against William Fechtenberg. From an order of the New York City Court setting aside a verdict in favor of plaintiff and granting a new trial, plaintiff appeals. Reversed, and verdict reinstated.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.

William D. McNulty, for appellant.
Jacob Newman (Francis W. Russell, of counsel), for respondent.

PER CURIAM. On or about March 7, 1905, defendant entered into partnership with one Ernest May and one J. Hansen Fechtenberg to carry on business under the name of the Scaglioline Brick & Fireproofing Company. One of the articles of copartnership provided that defendant and said Ernest May should "draw on account of the prospective profits of said business the aggregate sum of five hundred dollars monthly until the 30th day of June, 1905," and that, "if the said business in the judgment of the parties to this contract warrants, the said parties may withdraw on account of the profits an additional sum of five hundred dollars per month during the continuance of this agreement, so that each of the parties of the first and second parts may withdraw monthly from said business the sum of five hundred dollars, which sum shall be charged against the shares of the profits of said parties so withdrawing the same." On September 29, 1905, the partnership firm assigned the whole of its profits and assets to the Scaglioline Brick & Fireproofing Company, a corporation, in consideration for which the corporation issued all of its capital stock to the said firm, or its members, and assumed certain liabilities of

said firm. The corporation subsequently went into voluntary dissolution, and plaintiff was appointed receiver in such proceeding. It appears that between March 2d and September 29th defendant had drawn from the firm $1,730.20, to recover which sum the receiver of the insolvent corporation brought this suit for the benefit of its creditors. The jury brought in a verdict for the plaintiff for the full claim, but the court set it aside, and from the order entered thereon, setting aside the verdict and granting a new trial, plaintiff appeals.

It is plaintiff's contention that this sum of $1,730.20 was an indebtedness on the part of defendant to the firm, and was a part of the assets transferred to the corporation by said firm. It will be seen from the articles of copartnership, in force up to the time of the assignment to the corporation, that defendant was at liberty to draw $500 a month up to June 30, 1905, and that thereafter he could draw an additional $500 a month, if in the judgment of the parties the business warranted such payments. The amount withdrawn by defendant came well within these figures, and defendant claims that the fact that the amount was charged against his account on the books of the firm does not imply that he was indebted to the firm for that amount, but simply that this amount was to be deducted from his share of the profits, in accordance with the above-quoted article of copartnership. The bill of sale, however, was executed by the firm as such, and it was the manifest intention of all the parties concerned that the transfer was to include all of the rights and assets of the firm, as such, and not merely the individual interest or right of the respective partners. The withdrawals of $500 a month by defendant are expressly stated in the above-quoted article of copartnership to be "on account of the prospective profits of said business

un til the 30th day of June, 1905," and the withdrawals of the additional $500 a month are stated to be “on account of profits.” It appears from the practically undisputed testimony of the expert accountant, who examined the books of the firm, that not only were there no profits, but there was a net deficit of about $1,984. The defendant's withdrawals of the firm funds, therefore, must be held to have constituted an overdraft of profits. A partner must account to the firm for his overdraft of profits, and this liability is to be considered as an asset of the firm, which, in the case at bar, was transferred to the corporation of which plaintiff is receiver. The defendant himself kept the books of the partnership, and on these books this sum of $1,730.20 is entered as a debt due from him to the firm at the time of the transfer to the corporation, and the plaintiff urges that defendant, having thus by his own act represented to the corporation that this sum, as appearing upon the books of the firm, was a debt due by him to the firm, and having on the faith of this representation procured from the corporation a valuable consideration-i. e., its capital stock and the assumption of certain liabilities—should be held to be estopped to deny the correctness of the firm records which he himself kept. It seems to us that, having, at the time of the transfer, through the records of the firm, made the representation to the corporation that this amount of $1,730.20 was due from him to the firm, and by implication promised to pay it, defendant is barred from deriving any

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and 140 New York State Reporter benefit from the fact, assuming such to be the fact, that the money was originally withdrawn by him under a claim of right. There appears to be sufficient evidence to sustain the finding of the jury, and we are of opinion that the learned court below fell into error in setting aside the verdict.

The order is reversed, with costs and disbursements, and the verdict reinstated, with costs.

FELDMAN V. LEVY.

(Supreme Court, Appellate Term. November 29, 1907.) 1. NEW TRIAL-COMPROMISE VERDICT-VACATION.

Where, in an action for breach of a contract of employment, plaintiff testified that the balance due was $505, and the court charged that, if the Jury found for plaintiff, their verdict should be in that sum, a verdict for plaintiff for $250 was erroneous, as the result of compromise, and as not re sponsive to the instructions, and should have been set aside on defend. ant's motion, notwithstanding the rule that defendant could not complain because plaintiff did not receive as large a verdict as he was entitled to.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 37, New Trial, $$ 130–

149.] 2. SAME.

Where a verdict was the result of compromise, and the amount indicated that the jury either misunderstood or disregarded the evidence, as well as the instructions, defendant's motion to set it aside found sufficient support in the fact that the verdict was not warranted by the evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, $$ 130– 149.]

Appeal from City Court of New York, Trial Term.

Action by Leo Feldman against Beno Levy. From a judgment of the New York City Court for plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.

Manheim & Manheim (Jacob Manheim, of counsel), for appellant. Henry Kuntz (A. Pinkney Wilkes, of counsel), for respondent.

PER CURIAM. The plaintiff claims that defendant hired him as head foreman for a period commencing August 20, and terminating December 31, 1906, at a weekly salary of $30, and that on August 31, 1906, defendant discharged him without cause. The defendant admits the hiring and discharge, but claims that the hiring was by the week only, and that he discharged plaintiff because the latter was incompetent and negligent of his duties. On the trial plaintiff figured what he had earned during the period between his discharge and the termination of the contract, and stated it to be $35. The court then said: “I make the total balance (claimed to be owing from defendant to plaintiff) at $505. Is that right?" To which plaintiff replied: “Yes." At the close of the case the court charged the jury, among other things, as follows: "If you find for the plaintiff, it will be for the sum of $505.” To this charge no exception was taken. The jury brought in a verdict for the plaintiff for $250. The defendant moved to set it aside on the ground that it was a compromise verdict. The motion was denied and an exception taken by the defendant.

The motion should have been granted. The verdict was in direct contravention of the instructions of the court, and was clearly the result of a compromise. Bigelow v. Garwitz, 61 Hun, 624, 15 N. Y. Supp. 910. The fact that the motion was not made by the plaintiff, but by the defendant, did not justify the refusal to set the verdict aside. It is true that a new trial should not be granted where the moving party is not prejudiced (Woodruff v. McGrath, 32 N. Y. 255), and it has been held that as a general rule a defendant cannot complain because the plaintiff did not recover as large a verdict as he was entitled to receive, assuming the jury were justified in finding in plaintiff's favor at all; but if the amount of the verdict shows that the jury, in determining the case, wholly disregarded the evidence, or misapprehended its effect, or overlooked some important fact, or must necessarily have found some fact in favor of the defendant which is wholly inconsistent with a verdict for any amount in favor of the plaintiff, the defendant has a right to complain (Powers v. Gouraud, 19 Misc. Rep. 268, 44 N. Y. Supp. 249; Harton v. Bloom, 33 N. Y. Super. Ct. 115). While it is impossible to say whether or not the defendant was unjustly affected by the compromise verdict, the motion to set it aside found sufficient support in the fact that it was not warranted by the evidence. Myers v. Myers, 86 App. Div. 73, 83 N. Y. Supp. 236. The verdict was the result of a compromise, and the amount indicates that the jury either misunderstood or disregarded the evidence, as well as the instructions of the court.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide the event.

GOLDMAN V. MATZGER. (Supreme Court, Appellate Term. November 29, 1907.) APPEAL-REVERSAL-NECESSITY OF NEW TRIAL.

Where the verdict seems to have been given without a careful weighing of the probabilities and reasonable inferences to be drawn from the testimony, and without due regard to the rule that the party who holds the affirmative of the issues must bear the burden of proof, judgment will be reversed, for a new trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 88 4604_4609.) Appeal from City Court of New York, Trial Term.

Action by Isidor Goldman against Joseph Matzger. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and ERLANGER, JJ. Arnstein & Levy (Emil Goldmark, of counsel), for appellant. Leopold Freiman, for respondent.

and 140 New York State Reporter PER CURIAM. A careful examination of the record in this case leads us to the conclusion that the issues should be again laid before a jury for their determination. The contract alleged by the plaintiff to have been made with the defendant is so much out of the ordinary course of business transactions, when viewed in the light of the surrounding circumstances disclosed by the evidence, as to give it more than a tinge of improbability. The verdict seems to have been given without a careful weighing of the probabilities and reasonable inferences to be drawn from the testimony, and without due regard for the well-known rule of law that the party who holds the affirmative of the issues must bear the burden of proof. We are firmly of the opinion that the interests of justice will be best subserved by ordering a new trial.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

KAPLAN V. SHER.

(Supreme Court, Appellate Term. November 29, 1907.) PLEADING-BILL OF PARTICULARS-SCOPE.

Plaintiff alleged that defendant put him to work at a machine without instructing him as to the manner of operating it and without warning him of the dangers from such operation, that he had no knowledge thereof and could not have obtained knowledge without being informed thereof by defendant or his servants, and that on a specified date while he was working at or near one of the machines, he was injured by a defect in the condition of the ways, works, or machinery connected with defendant's business. Held, that defendant was entitled to a bill of particulars stating whether plaintiff was operating the machine when he was injured, the character of the business plaintiff had been prevented from following, the wages or income he had been prevented from earning, the amount paid for medical services, and whether at the time of the accident he was directed to operate the machine, what he was directed to do, and in what respect defendant's ways, works, or machinery were defective.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, $ 956.) Appeal from City Court of New York, Trial Term.

Action by Jacob Kaplan, an infant, by Mary Kaplan, his guardian ad litem, against Louis Sher. From an order of the New York City Court, denying part of defendant's motion for a bill of particulars, 'he appeals. Modified and affirmed.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and
ERLANGER, JJ.

Herman Kahn, for appellant.
H. B. Davis and Henry S. Mansfield, for respondent.

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ERLANGER, J. The complaint alleges that the defendant put the plaintiff to work at or near a machine used for the manufacture of buttons, without instructing him as to the manner of operating the same, and without warning him of the dangers reasonably to be expected from the operation thereof; that he had no knowledge of such dangers, nor could he have obtained such knowledge without being informed thereof by the defendant or his servants; that on

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