The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-23
W srsusa A cenlldsrsd y -

yurisoaouoo ~ er8uen or conAdered ~ -
And IN BArtiets ~ ~, Nlrs,sa, & 10, q Sad
ford. ~ where an lnjupetisa Wls sppiied for
on the distinct ground that heplahtf was mot
. resident Of this city, end WIS illegally taxed
here. the case was considered u6ta - merits,
and the plaintiff was deemed sr6Ssds6t, within
tie meaning Of the aot Of 1850 tsess. Laws,
| 1850, q. 92) t.-ss.r. ..3f 1.fs s,.,E,.- aaA
The jurisdiction Of the court would seem to
ton does not appear TO have been raised, the
case cannot be deemed IN authority In support
Of the jurisdiction, in opposition to the previous
| cases. H. 4a
And in the csee Of Bouton vs.. the City Of
Brooklyn, How. p. Rep, 1873, where the Su-
preme Court of the Second district were ap-
plie6 10 for an injunction to restrain the col
real estate for public park, that court held on
demurrer that the plaintiff had remedy at law,
and that court of equity would not interfere
| even to remove cloud upon the title to the
lands assessed in such case. 1879
Entertaining the views which I have stated
above, and believing that they are in conform
| ity with the decisions heretofore made when the
| point has been presented, am constrained to
bold that to restrain the collection OF tax
upon personal estate on the grounds alleged In
the complaint herein, court Of equity has
no Jurisdiction. ,6ff
Assuming it as conceded that the question
Of jurisdiction was properly raised by the de-
murrers Notwithstanding the suggestions above
Intimately. the defendants may have Judgment
on the demurrers, with the usual leave to the
plaintiff to amerd III he deems an amend
mt mt possible) on the usual terms.
Supreme Court-Cseneral Term.
Before Hon. Judges Mitchell, Roosevelt and
Clerke.
DEcIsroNs.-The following decisions of the
June term were briefly noticed at the time they
were rendered.
OF Union ON CoPARTNERSHIP-MIILSy v. THURsBY.
ROOSEVELT, THAT partnership was form
| ed between Mills ard Thursby admits of no dis
pute. That the particular partnership men
| toned in the unexecuted written articles was
not consummated think equally clear The
refusal to execute the articles after they were
drawn is decisive on that point, to say nothing
of the injustice and absurdity of one at least of
| their provisions What then, so far as they
had any, was the unwritten understanding of
the parties, or their presumed understanding,
resulting from the justice and equity of the
case p? Mills, in fact, put in 40 capital, although
he had stipulated to do SO. Thursby, Temporal
| rily at least, loaned or let to the firm the es-
| tablisbment and its appurtenances. Asteach
was to contribute equally his whole time and
SKILL each, in the absence Of any reason or pro-
vision to the contrary, was to be entitled to an
| equal half Of the profits. In estimating these,
however, 1t is manifest that the rent or inte-
4 rest Of the stock and establishment was
first to be deducted and paid or credited
to Thursby; or, which is the same thing, the
half was to be credited to Thursby, and charged
| to Mills, individually. Thus, assuming the
value of the establishment, &c, to be $4,000
and treating that amount as sum of money
loaned By Thursby to the firm, he would be en-
titled to S2.l00 per annum. AS member of
! the firm, ne would pay one half of this to him
self, and by charge in his favor and against
Mills, the latter would pay the other half
Such an arrangement, however, could only
| answer for very short time; for interest OF
seven per cent, II is apparent, is no equivalent
for any length of time for the use of machi-
merry. Accordingly the period, we find, was
Mills, contrary to and in violation of the I'M
Outstanding, protracted to more than eighteen
months He has no right, therefore, to confine
Thursby to the basis Of merely legal interest.
Either a suitable rent should be charged-not
less, probably, than ten per cent-or interest at
seven, and liberal allowance in addition, for
wear and tear Of machinery The idea Of rent
does not appear to have been suggested on the
reference; and on the other hand there has
been no allowance for wear and tear. There
is a charge, it is true, of about seven thousand
dollars, sfOr new engine, machinery and build
ing placed to the expense account; and as this
went in reduction IF profits, it was in effect
paid bali by each partner. The referees, there.
ore, in giving the things purchased wholly to
pay the whole Of their cost. But this circum-
starce, instead Of removing the objection aris-
ing from wear and tear rather aggravates it.
For Thursby in this way, not only gets no
compensation for the diminished value of the
original machinery, but none also for the d.
minished value of the superadded 81 900 worth,
which had been in use nearly eighteen months
Had Mills, as he agreed promptly paid, and
taken conveyance Of the one undivided half
he would have borne, as necessary conse-
quence, his equal half Of the loss. And shall
he profit BY his own default? Especially when
he AYERS as he does in his replication to Thurs
by's answer, that "he was always abundantly
able to pay the amount agreed and only de-
ferred payment thereof, under his agreement
in order to sell portion of his farm advan-
taseousy." Consulting thus his own advan
tage, in breach of his obligation to Tbursby
shall be be permitted to throw the consequent
loss upon Tlursby also? For wear and tear OF
machinery is loss as much as destruction by
fire. or by bad debts. But Thursby has
not only been charged with the full
value of the machinery. as if it were as good as
the partnership, but also with all the outstand
ing debts, as if they we're actual cash in hand
He claimed, it is true, an exclusive right to
these debts but he did so, it must be remem-
bered, on the assumption that there was nc
partnership Taking away his supposed right
we cannot properly charge him with its conse.
quent burthen. If Mills is to be adjudged q
partner, and as such entitled to an equality Of
profits, every principle Of justice requires that
Ike other partners, he should be subjected &c
an equality Of losses. These debts, ii will be
borne in mind being in the partnership name
were as much open to collection by Mills, as
by Thursby and there would seem to be nc
better reason for changing them TO Thursby, az
cash received by him. than to Mills, as cash re-
ceived by him. If Thursby in fact collected
them, he should be charged with them; but
that fact, like any other, If it existed, was not
to be presumed, but proved Mills, without
any knowledge Of the business. and without