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Mills agt. Thursby.

I therefore am of the opinion that the ruling at the circuit in this case, excluding the evidence offered, was right; and as that is the only point presented by the case, I think the motion for a new trial should be denied.


. [ No. 1. )
David S. Mills agt. John THURSBY. .

Although a question of partnership or no partnership, alone, is is a proper one

to be decided by a jury, yet where it is so connected with the accounts of the firm that a full statement of the accounts will require an examination, the cause should be referred.

New-York Special Term, March, 1850.

This action was commenced November, 1848, for an account as between partners, and for damages for unlawfully dissolving the co-partnership.

The defendant denied the existence of the co-partnership, and any liability to account. A motion was made upon the pleadings for a reference. The other facts appear in the opinion of the court.

N. B. Blunt, Brown & Mathews, for plaintiff.
GEORGE SULLIVAN, for defendant.

MITCHELL, Justice.' The plaintiff alleges that he and the defendant were partners, and that the partnership was to continue five years, and was wrongfully dissolved by the defendant; and claims damages, and his share of the profits.

The defendant admits that plaintiff was held out by defendant as a partner, and allowed to act as such, so far as third persons were concerned; but says it was under an agreement that the plaintiff should not be a partner unless he put in a cer

Vol. XI.

Mills agt. Thursby.

tain amount as capital within a limited time; that he did not put it in within that time, nor ever afterwards; and that therefore, as between themselves, they are not partners, however they may have appeared to the world.

The plaintiff says that the books will show that he put in this amount of capital: the defendant denies this.

To settle this last question, an examination of a long account will be necessary; and if the plaintiff, who kept the accounts, has made erroneous entries, to give the appearance of paying what he has not paid; or if this imputation be incorrectly made, referees can judge of these matters better than a jury. Ultimately, it is admitted, there must be a reference if the plaintiff succeed in establishing a partnership.

Although it might be proper to send to a jury a naked question of partnership or no partnership, if that inquiry were entirely isolated from the statement of the accounts, yet, even that question is here so connected with the accounts that a reference should be ordered.

Let referees be appointed.


[ No. 2. )

David S. Mills agt. John THURSBY.

Where a motion has been made, fully heard, and absolutely denied, it cannot

again be heard upon substantially the same state of facts. (Rule 87.) And

a party moving cannot bring forward his objections by instalments. A chamber order, which may operate to create a stay of proceedings beyond

twenty days, is irregular.

Special Term, November, 1852.

JUDGMENT was recovered in this action on the 13th of September, 1851, in favor of the plaintiff, for $19,455.78; and on

Mills agt. Thursby.

the 29th day of September, 1851, motion was made before Judge EDMONDS, at special term for a stay of proceedings upon the judgment, pending an appeal to the general term, taken by the defendant, and also to vacate the judgment for alleged irregularity. Proceedings had been stayed upon the judgment by a series of ex parte orders, each of twenty days from its entry, to this time.


for plaintiff GGORGE SULLIVAN and N. D. ELLINGWOOD, for defendant.

ROOSEVELT, Justice. All the questions of alleged irregularity existed, and were known prior to the 29th Sept., 1851.

They were passed upon, after argument, by the court at special term, both parties being heard on that day.

The order of that date decided that there was no irregularity; that the defendant was not entitled to further time to make a case; and that the plaintiff's proceedings ought not and should not be stayed.

The defendant's application was accordingly denied, with costs.

By the 87th rule of the court, which this case demonstrates the necessity of enforcing, it is declared that “if any application for an order be made to any justice of this court, and such order be refused, in whole or in part, or be granted conditionally, or on terms, no subsequent application, upon the same state of facts, shall be made to any other justice; and if, upon such subsequent application, any order be made, it shall be revoked. (See also Mitchell agt. Allen, 12 Wend. 290; Dolfus agt. Frost, 5 Hill, 493; Allen agt. Gibbs, 12 Wend. 202.)

The same state of facts, substantially, is now presented.

If there be any difference, it is very slight; and even that is met by the established practice, that “a party complaining of any proceeding in a cause must embody all objections, then existing, in one motion; he cannot make a separate motion for each objection. (Desmond agt. Wolf, 1 Code Rep. 49.)

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In other words, he cannot bring forward his objections by instalments: such a course would lead to interminable vexation, delay, and expense.

The three several chamber orders obtained by the defendant, bearing date the 21st Nov., 1851, and the 7th and 29th Jan., 1852, so far as they may be construed as creating a stay of proceedings beyond twenty days, are irregular for the further reason that, by the 401st section of the Code, it is provided that

“No order to stay proceedings for a longer time than twenty days, shall be granted by a judge out of court, except upon previous notice to the adverse party."


[ No. 3. ] John B. THURSBY and others, executors, &c., of John Thurs

BY, deceased, agt. David S. Mills.

Where a report of referees had been made, judgment thereon entered, and exe

cution issued, pending which the defendant died; and on a supplemental complaint by the executors of the defendant, to review an alleged mistake or omission of evidence, in respect to the partnership accounts on the hearing ;

and for an injunction to stay the proceedings on the execution; Held, it appearing that the defendant, on the hearing, was informed of the ne

cessity of proving the fact which was sought to be corrected, and no excuse being offered for not moving for such relief within some two years after judgment entered, the plaintiffs were not entitled to a stay of proceedings.

New-York Special Term, October, 1853

JUDGMENT was recovered in this court in an action between partners on an account, in favor of Mills, against John Thursby for $19,455.78, September 13, 1851, and appeal taken to the general term. Motions for a stay of proceedings had been successively made at special term by defendant, and, after argument, denied-September 29, 1851, also November 5, and De

Thursby and others, ex’rs, &c. agt. Mills.

cember 15, 1852, also February 19, and April 16, 1853. The defendant, John Thursby, died April 23d, 1853, and the present plaintiffs were his executors.

This action was commenced as a supplemental complaint to review and correct certain alleged accidental omissions and errors in the accounts on the trial before referees, by whom the cause was heard.

The complaint averred the commencement of the suit by Mills against John Thursby, and referred to the allegations in the complaint, of a partnership between the parties, of the unlawful dissolution thereof by Thursby, and of the claim therein for damages, and an account of the partnership transactions. That the defendant had answered, denying the material allegations; that the action had been referred to John Cochrane, James W. Metcalf, and Schuyler Livingston, to hear and decide the whole issue; and that they, in July, 1851, had reported due the plaintiff $16,889.89, besides costs; that judgment had been entered thereon, and an appeal taken as above mentioned. That on the hearing before the referees, it was accidentally omitted by Thursby to produce before them evidence showing the amount of bad debts and losses incurred in the business during the existence of the partnership, and they were not taken into account by the referees. That the loss from bad debts amounted to over $10,000; and that Thursby had not discovered, until after judgment, the accidental omission of this evidence. That executions had been issued upon the judgment to the sheriffs of the counties of Kings and NewYork, and that each claimed to have levied upon sufficient property of the defendant to satisfy the judgment. That Thursby had died in April, 1853, leaving a will, which had been proved, and letters testamentary issued to plaintiffs, in whose name the suit had been revived.

Motion was now made for an injunction to restrain the plaintiff from collecting the judgment, or ruling either sheriff to return the executions, or taking proceedings against them to recover or collect the judgment.

The defendant, Mills, by his answer, denied the allegations

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