#### Isaac Straus, Resp’t, *v.*William Heyenga, Appl’t.

*(Supreme Court, General Term, First Department,*

*Filed October 21,*1886.)

1. PARTNERSHIP — ARBITRATION — PLEADINGS—COMPLAINT.

The plaintiff and defendant entered into a co-partnership agreement, one of the clauses of which provided that in case of the dissolution of the firm, before a date specified, the plaintiff should receive the amount of capital contributed by him, and a proportion of the profits on all goods sold after a certain date. Business was entered upon and continued for a time, the *38firm being dissolved before tbe time concerning which the agreement was made. These matters were alleged in the complaint, and also that the differences of the partners were submitted to arbitration and an award made. This latter allegation was denied by the answer and no proof thereof given on the trial. The defendant claimed that this allegation having been made by the plaintiff, he was precluded thereby fx om obtaining the relief as in any ordinary action of accounting between the the partners. *Held,*that the plaintiff had alleged other matters sufficient to enable him to recover upon the contract alone.

Appeal from a judgment entered upon tbe report of a referee. Tbe plaintiff and defendant, on tbe 21st day of July, 1881, entered into a written eopartnersbip agreement for tbe purpose of manufacturing,«buying and selling brier-wood, pipes. Among tbe provisions of said, contract was tbis: “ In tbe event of the firm not continuing after December 1,1881, then tbe said Isaac Strauss is to receive tbe amount contributed by him to the capital herein and one third of tbe profits on all goods sold by said firm after August 1, 1881.” The firm entered upon its business about tbe first day of August, 1881, and on or before tbe first day of December following tbe business was discontinued and tbe firm duly dissolved.

Tbe plaintiff contributed to tbe. capital stock in all tbe sum of $2,150 and drew therefrom, from time to time, in small sums, amounting in tbe aggregate to tbe sum of $713.18, making a net contribution to tbe funds of tbe copartnership of $1,436,67.

No profits were made during tbe continuance of tbe copart- . nership. Tbe referee found in favor of tbe plaintiff in tbe sum of $1,436. 67, with interest thereon from the first day of December, 1881, and judgment was accordingly entered against tbe defendant.

*Leonard*Bronner, for the resp’t; *Samuel*Q-reenbaum, for tbe appl’t.

Macomber, J.

Tbe findings of the fact made by tbe referee are in accordance with tbe evidence in tbe case. His construction of the written agreement between tbe parties is tbe only one that can be made. Indeed tbe instrument is so plain and unambiguous in its language and terms as to requffe no interpretation whatever. Tbe plain reading of it is, that tbe parties thereto entered into a limited, temporary and provisional partnership to continue certainly for four months, and, in a contingency, three years longer. Tbe. parties failed to make any arrangement for the continuance of tbe partnership beyond tbe first day of December, 1881, but on tbe contrary ended their business connection under the agreement. Tbe right of tbe plaintiff under the circumstances, as determined by tbe contract, was to require of tbe defendant a payment to him of tbe sum of money which be bad contributed to tbe partnership with interest thereon from tbe time tbe copartnership ceased.

*39Tbe counsel for tbe defendant contends that tbe plaintiff ought not to have the relief which has been given him by the referee, because his complaint was framed upon a different claim than the one which lies at the foundation of the judgment. His contention is that the plaintiff, having alleged that the differences between the partners had been submitted to arbitration, and an award made by the arbitrators in favor of the plaintiff and a judgment asked therefor by him, he is precluded from obtaining the relief as in an ordinary action of accounting between partners. It is true the complaint does allege the fact that such differences.were submitted to arbitration and an award was made, but tiffs is denied by the defendant in his answer. At the trial, no evidence was given of such arbitration or award, nor is there anything in the case which establishes the fact that such an arbitration was had. The plaintiff had, however, alleged in his complaint other matters sufficient to permit him to recover upon the contract alone. The complaint sets forth the agreement of the parties and that the plaintiff performed on his part fully, and paid in the sum of money alleged, and that the copartnership was dissolved in the month of November, 1881, in pursuance of the terms of the written agreement; It asks for a formal dissolution of the copartnership, the appointment of a receiver, an accounting and distribution of the assets, an injunction, payment to the plaintiff of what is due him, and for other relief. The complaint, therefore, is entirely sufficient, outside of the allegations touching the arbitration, to have enabled the referee to pronounce the judgment which has been entered. .

Inasmuch as there were no profits made in the business, the plaintiff was not entitled to any sum therefor, and inasmuch as the plaintiff had the right, under the agreement, to withdraw the amount of money which he had paid in, he was not in turn chargeable with any loss which may have accrued between the beginning of the business and its close in November.

It follows, therefore, that the judgment should be affirmed with costs.

DANIELS and Beady, J J., concur.