1 Bosworth Super. Ct. Rep. 28

P. H. and J. D. Hurlbut v. R. H. Post, impleaded with Ryerson.

An instrument in writing, by which one party “agrees to let for one year from its date” certain premises, and by which the other party agrees to pay the stipulated rent quarterly, and declaring that the “agreement shall continue in force and effect for one year from the date hereof)” operates as a lease, in presentí.

When one person enters into a contract with two others by name, without knowing or having at the time any reason to suspect that they have a partner in the business to which such contract relates; in a suit upon such contract the two with whom it is made may alone be sued, and it is not necessary to make their partner, if they had one, a party. As to such a transaction, and under such circumstances, he may be treated as a dormant partner, although the plaintiff knew before suit brought that, the two had such a partner at the time the contract was made.

When the lessor, in a lease to two persons as lessees, agrees to render services of a stipulated character, for the lessees during the lease, for a commission, and the lessees, before the expiration of the lease, dissolve their co-partnership, and thenceforth each prosecutes the same business on his own account and solely for his own benefit, such lessor is not bound to render the stipulated services for only one of such lessees, and his neglect or refusal to do so is no bar to an action to recover subsequently accruing rent, nor will it give to either of such lessees a right of action which can be interposed as a counter-claim in a suit against the two to recover such rent.

Nor will the fact of such dissolution, and an agreement between the lessees that each shall thenceforth occupy separately a distinct portion of the demised premises, accompanied by such separate and several enjoyment, of themselves and alone, affect the lessor’s right to maintain an action against such lessors jointly, to recover the rent which, by the lease to them, they stipulated to pay.

(Before Oaeuey, Oh. J., and Bosworth and HoramH, J.J.)

Argued February 18th, and

decided April 11th, 1857.

This action comes before the Court at General Term, on an appeal by the plaintiffs from a judgment against them in favor of the defendant, Post. It was brought by Peter H. and John D. Hurlbut, against Russel H. Post and John Ryerson. The *29complaint alleged that the plaintiffs, on the 15th of August, 1854, “ demised and leased unto the defendants certain premises, to wit, an office in the third story of No. 84 South street, for one year from the date aforesaid, at the rate of $600 per annum, payable quarterly, and under and by virtue of said demise, the defendants entered into possession of said premises, and by reason of said demise and possession, the defendants became indebted to the plaintiffs, on the 15th day of May, 1855, for the sum of $150, for the quarter ending at that date, and though requested, the defendants have not paid the same, nor any portion thereof.

“ Wherefore the plaintiffs demand judgment against the defendants, with interest and the costs of this action.”

The defendant, Russel H. Post, alone answered, and alleged, First, that the demise mentioned in said complaint was made to the defendants and Benjamin Dunning jointly, and not to the two defendants alone. Second.—Post, for a further and separate answer, “ denies the said indebtedness, in manner and form as set forth in the complaint, or in any other way or manner.”

Third.—An eviction of the defendants and Dunning, after they had entered into the demised premises, under said demise, and on or about the 1st of September, 1854, by the plaintiffs, from a part of the premises, and a continuance of such eviction during the residue of the term.

“ Fourth.—The said defendant Post, for a farther and separate answer, says the defendants’ and said Dunning’s obligation to pay rent, by the terms of the said demise, was subject to a condition precedent, to be performed on the part of the plaintiffs, which condition was not performed on the plaintiffs’ part, but was broken in this, to wit: the plaintiffs undertook, and promised the defendants and said Dunning, to procure for them freights, both foreign and coastwise, for such vessels as the said defendant and Dunning might put up; and that they would use their best efforts to promote the interests of said defendants and Dunning with respect to such vessels, during the whole term of said demise. This defendant Post says, that the plaintiffs fulfilled that agreement for a short time after the making of said demise, that is to say, for about three months, and from that time wholly neglected their duty in that behalf, and for the residue *30of said time used all their influence and efforts to divert freights and business from the defendants, and thereby damaged this defendant Post at least one thousand dollars, as this defendant Post states on information and belief. And the plaintiffs, by violating their duty in that behalf, by the terms of said demise, precluded themselves from all right to demand rent. And so this defendant Post says the plaintiffs are not entitled to recover in this action, and he demands judgment against them, that the said complaint be dismissed with costs.”

“ The plaintiffs reply to the answer of the defendant, and deny that the terms of said demise were subject to the condition precedent, to be performed on the part of the plaintiffs, or that the same was broken, as in the said answer is stated, or that the defendant has been damaged, by the non-fulfilment by the plaintiffs of any agreement on their- part to be performed, in any amount whatever.”

The action was tried before Mr. Justice Woodruff and a Jury in March, 1856. Elisha D. Hurlbut was sworn as a witness for the plaintiffs, and was shown an unsealed agreement, which, as he testified, was executed by the parties and signed by himself as a subscribing witness. The plaintiffs offered it in evidence ; the defendant Post objected on the ground that “said paper was not a lease, or instrument under seal, and was a mere agreement for use and occupation, which objection was sustained by the Court, and said agreement was excluded. Whereupon it was agreed by the parties to go to trial on the merits, and that the complaint and answer should be deemed amended, so as to conform to the merits, as the same should be established by the proofs.” The said paper or agreement was then read in evidence to the jury, and is as follows, viz;

“ Memorandum of an agreement made this fifteenth day of August, 1854, between John D. Hurlbut and P. H. Hurlbut, of the firm of Hurlbut & Co., of the one part, and Post & Ryerson of the other part. The said Hurlbut & Co. agree to lease unto Post & Ryerson the office in the third story of 84 South street, (heretofore occupied by E. D. Hurlbut & Co.) for the term of one year from the date hereof, at the rent of ($600) six hundred dollars per annum, payable quarterly. And the said Post &; Ryerson shall also have the use and privilege of all the office and *31furniture, reserving to the said Hurlbut and Oo. the privilege of two desks to transact their own business.

“ And the said Hurlbut & Go., promise and agree that they will procure freights, both foreign and coastwise, for such vessels as may be put up by said Post & Eyerson, and that they will use their best efforts to promote the interests of the said Post & Eyerson with respect to such vessels.

“And the said Post and Eyerson, on their part, agree, that they will hire the said office on the conditions above named, and also will pay the said Hurlbut & Co., as compensation for their services, an amount which will be equal to one-fifth of the net commissions (after paying brokerage thereof) of all outward, foreign, and coastwise freights, and of outward, foreign, and coastwise charters, on all vessels put up to load outward by the said Post & Eyerson.

“ It is, however, expressly understood between the parties to this agreement that, nothing herein contained shall be construed to prevent the said Hurlbut & Go. from transacting any business they shall think proper, which shall not injure or interfere with the business of the said Post & Eyerson, or the obligation of the said Hurlbut & Go., under this contract, to promote their interests.

“ Signed this day and year first above written.

“ It is mutually agreed that this agreement shall continue in force and effect for one year from the date hereof.”

It was proved that the defendants occupied the premises in the third story of 84 South street from the 1st of February to the 1st of May, 1855. They had all that story except two desks in the portion partitioned off in the rear.

On the cross-examination of this witness, some evidence was given tending to show that the defendants and Dunning were partners when the above agreement or lease was executed; but whatever may be its effect in that behalf, it did not tend to show that the plaintiffs knew, or had reason to suspect that Dunning was a member of the firm of Post & Eyerson.

The plaintiffs then read in evidence an agreement between Post and Eyerson, dated the 6th of January, 1855, by which Eyerson sold and assigned all his interest in the firm of Post & Eyerson to Post, including “ all and singular the lease of the office in the building number 85 South street, retaining an inte*32rest in the office number 84 South street.” To that agreement was annexed a written memorandum in these words, viz:

“ Memorandum.—It is agreed that J. H. Ryerson is to have the use of three desks in the front office of 84 South street, until expiration of the lease to Post & Ryerson. The three desks are to be the first three back desks on the north-easterly side of the office, as named verbally: when R. H. Post and others connected with him leave the said office finally, the said J. H. Ryerson to have the full privilege of all the said office, as far as R. H. Post has power in the premises, and also all claim that B. Dunning may have to said premises. It is understood that R. H. Post will vacate the office 84 South street as soon after the 1st May next as he can obtain possession of the office 85 South street, after a reasonable time to fit it up for use, and when he so vacates the office 84 South street, the said Ryerson is to have entire possession of the whole house and premises.

Witness, Russel H. Post,

E. H. Owen, John H. Ryerson.

Hew York, 6th January, 1855.”

The plaintiff next read in evidence, a notice published in the Hew York Journal of Commerce, of the Dissolution of the Partnership of Post and Ryerson, and of the new partnership of Post, Smith & Co., as follows:

Hotice.—The firm of Post and Ryerson has been this day dissolved by the mutual consent of the parties interested. The business of the late firm will be liquidated and settled by either member of the firm, at their former place of business, 84 South street.

Hew York, Dec. 29th, 1854.

Russel H. Post,

John H. Ryerson.

The undersigned have this day formed a Copartnership, for the transacting of a general shipping and commission business, under the firm and name of Post, Smith & Co.

Hew York, Jan.-1st, 1855.

Russel H. Post,

W, James Smith,

Benj, Dunning,

*33The plaintiffs then rested.

Evidence was given by the defendant, Post, as to the manner in which the demised premises had been occupied from the date of the lease. It appeared that the premises consisted of a front and back office, the defendants and their clerks occupying the former, and the plaintiffs the latter. So much of the evidence, as bears upon the question whether the plaintiffs had at all times exclusive possession of the back office, and as relates to efforts of the defendants, or of either of them, to have more use of it than they actually enjoyed, as is deemed material, is stated in the opinion of the Court.

It appeared that Ryerson and one William Laytin, and Peter H. Hurlbut, one of the plaintiffs, formed a partnership about the 1st of January, 1855, under the name of Laytin, Ryerson & Hurl-but, for the prosecution of the same business as that conducted by Post, Smith & Co.

It appeared that Post and Ryerson, prior to their dissolution, had obtained a lease of 85 South street. After their dissolution, and after the formation of the two new firms, and until Post, Smith & Co. moved into Ho. 85 South street, the latter firm occupied the front office of Ho. 84 South street, and Laytin, Ryerson & Hurlbut the back office. Prom the time of the formation of such new firms, the plaintiffs rendered no services in procuring freights for Post, but, on the contrary, as he alleged and attempted to prove, they solicited business for the firm of Laytin, Ryerson & Hurlbut, to Post’s damage, individually, and as a member of the firm of Post, Smith & Co. It was admitted that, the defendants paid to the plaintiff fall rent up to the 1st of February, 1855.

The testimony being closed, the Counsel for the plaintiffs requested the Court to direct a judgment for the plaintiffs, upon the ground that there was no evidence of the non-joinder alleged in the answer, or of any eviction of the defendants, or of any breach of contract, or any evidence of damage to the defendants by a non-fulfilment of the contract between them and the plaintiffs.

The Court refused so to direct, and charged the Jury

First—That the plaintiffs were bound to join Dunning as defendant, if he was one of the co-partners comprising the firm of Post & Ryerson, at the time of making the agreement of August 15th, 1854, and that membership was open and notorious, and *34was, in fact, known to the plaintiffs. And, if they so found, then, that the defendants were entitled to a verdict, upon the defence, set up in the Answer; that the said Dunning was not joined as a defendant.

To which plaintiffs’ Counsel excepted.

Second—That if the plaintiffs withheld from the defendants a portion of the premises, beyond the use of the two desks mentioned in the agreement, without the consent of the defendants, and against their will, from February 1st, 1855, to May 1st, 1855, such withholding entitled the defendants to a verdict.

To which plaintiffs’ Counsel excepted.

Third—That the plaintiffs were not at liberty, (unless the defendant Post discharged the plaintiffs, or assented to their discontinuing their services,) after the dissolution of Post and Ryerson, and the transfer by the latter to the defendant Post, to interfere with the business of the defendant, Post, by engaging in an opposition to the defendant Post, in the same business, and, by lending their services to a rival house and soliciting and procuring freight for themselves, or the new firm of Laytin, Ryerson & Hurlbut, to the injury of the business of the defendant Post. And if they did so without his consent, and against his will, they were liable to the defendant, Post, and in the amount of damage which he sustained by their doing so, and that such damage should be allowed to the defendant.

To which the plaintiffs’ Counsel excepted.

That the rent was not divisible, and must be fixed at the amount mentioned in the agreement, of $150 per quarter. The Court further directed the Jury to return answers to the following interrogatories, to which the Jury returned answers in writing as to the several questions propounded, viz.

First—Was Benjamin Dunning a member of the firm of Post and Ryerson, by whom the agreement for the premises in question was made, and was that fact known to the plaintiffs at the time of the commencement of this suit?

Answer by the Jury—Yes.

Second—Did the plaintiffs withhold from the defendants a portion of the premises, (beyond the use of the two desks mentioned in the agreement), without the consent of the defendants, anj *35against their will? If yea, did that withholding continue from 1st February, 1855, down to the 1st May, 1855 ?

Answer by the Jury—'Yes.

Third—Did the plaintiffs perform their agreement in relation to procuring freights, down to the time of the dissolution of the firm of Post & Ryerson ?

Answer by the Jury—Yes.

Fourth—Did the defendant, Post, at, or at any time after that dissolution, discharge the plaintiffs from such performance, or assent to their discontinuing such services? ,

Answer by the Jury—No,

Fifth—Did the plaintiffs refuse or neglect to render the services stipulated in that agreement, after such dissolution, and the assignment by Ryerson to Post of the co-partnership property? Answer by the Jury—Yes.

Sixth—Did the plaintiffs interfere with the business of Post from and after the 1st of January, 1855, by procuring freight for themselves, or the new firm of Laytin, Ryerson & Hurl-but, to the injury of the business of the defendant, Post? Answer by the Jury—Yes.

Seventh—If yea, what damages were sustained by defendant, Post, by reason thereof.

Answer by the Jury—$150.

To all which questions the plaintiffs’ Counsel objected.'

To the First—On the grounds elsewhere stated, that it is immaterial, and that there was no evidence whatever that the plaintiffs had any knowledge that Dunning was a member of the firm.

To the Second—That there was no evidence of such withholding ; the evidence being express, that the defendants always continued in possession of the same premises which they originally took, and for which they continued to pay, without objection, to February 1st, 1855.

To the Third—That there was no evidence introduced to show or tending to show, any failure to fulfil the agreements on the part of the plaintiffs, before the dissolution.

To the Fourth—That it was immaterial—the performance of the agreement having been rendered an impossibility by the dissolution, which was the voluntary act of the defendants.

*36.. .To the Fifth—On the same grounds as the preceding, and on the ground that there was no evidence of any demand on the part of Post, or refusal on the part of plaintiffs.

. To the Sixth—On the same grounds as the preceding, and on the .ground that, the dissolution of the agreement dissolved any obligations of the plaintiffs to the defendant, Post.

To the Seventh—On the same grounds as the preceding, and on the ground that there was no evidence as to damages.

The Case was then submitted to the Jury, who found a verdict for the defendant, and returned written answers to the first, second, third, fifth, and sixth, interrogatories in the affirmative, and an answer to . the fourth interrogatory in the negative, and in- answer, to-the .seventh interrogatory, the sum of one hundred- and fifty, dollars, as above answered in writing by the Jury.

On the 13th of June, 1856, a judgment was entered -under the direction, of .the Court, in favor of the defendant, Post, against the plaintiffs for $150 damages, and his costs of the action. From that judgment the plaintiffs appealed to the General Term.

C. A. Nichols, for Piffs and Appellants.

E. Seeley, for Def't Post; Resp't.

By the Court. Bosworth, J.

The instrument of the 15th of August 1854, signed by the plaintiffs and defendants, is a lease for one year from its date, and the plaintiffs should have been allowed to read it in evidence, under their complaint.

Hallett v, Wylie, 3 J. R. 44; Thornton v. Payne, 5 id. 74.

If-the plaintiffs did not know, when that agreement was made, that Dunning was a member of the firm of Post & Byerson, he may be treated as a dormant partner, and they are not obliged to make him a defendant. They contracted with Post & Eyerson alone, and there being nothing in the style of their firm to indicate that any other person was a member of that firm, and the plaintiffs having no notice at the time of contracting, of any such fact, it was not necessary for them to make him a defendant.

N. Y. Dry Dock Co. v. Treadwell, 19 Wend. 525;. Clarkson v. *37Carter, 3 Cow. 84; Clark & Bissell v. Miller & Lozee, 4 Wend. 628; Mitchell v. Dall, 2 Har. & Gill. 159 and 171-2.

The evidence does not justify the finding of, and the jury have not, in fact, found an eviction. At most, there was an unreasonable persistency on the part of the plaintiffs in objecting to Post & Ryerson’s putting an additional desk in the back office: The defendants acquiesced to this extent. They paid full rent for a time subsequent to their dissolution, without claiming or asking a deduction on account of it: There was no application; by either of them after that dissolution, to the plaintiffs, for leave to put more desks in the back office, nor any complaint that they had not been permitted to do so.

A reference to the testimony shows very clearly, that the action was tried on the theory, that the evidence tended to show, and that the defendant Post, was endeavoring to prove, that from the date of the Lease, the plaintiffs had exclusive possession of the back office, and that Post & Ryerson, in fact, at no time had, or were able to obtain any use of it.

Elisha D. Hurlhut, testified that, “ the Hurlbuts had exclusive possession of the back room”—

R. H. Hoadley, that, “the back office was used by Hurlbut & Co. exclusively,”—

“ The plaintiffs’ counsel objected to evidence tending to show that, the plaintiffs were at all times from and after the execution of said lease, in the exclusive possession of said back office, and wholly excluded therefrom the said firm of Post & Ryerson, prior to the first of January, and said Post & Dunning at all times thereafter, up to the first of May, when said firm of Post, Smith & Go. removed to said No. 85, upon the ground that such evidence is inadmissible under the pleadings. The Court in accordance with the previous ruling and consent, allowed the pleadings to be amended and received the evidence, and plaintiffs’ counsel excepted”—

“ I heard'Mr. Dunning say, the members of the firm of Post & Ryerson had a right to the back office”—(R. H. Hoadley’s testimony.)

B. Dunning, who was objected to as incompetent, and admitted as a witness against the objection and exception of the plaintiffs, testified that, “ the back office was occupied by the Hurlbuts; *38we, (Post & Ryerson), wanted more room; the reason we asked for the back room. I went in there with Capt. Post, and applied for room in that back office.”

The plaintiffs excepted to the admission of this evidence.

“I went in with Capt. Post into the back office; he told them he wanted to put a desk in that office; Mr. J. D. Hurlbut objected to it; Capt. Post urged it; He wanted more desk room— objections were made in different ways; Capt. Post wanted to move the sofa so as to put a desk there. Mr. Hurlbut objected to it, and would not consent. Mr. Hurlbut said they wanted all of it; There was room for more desks: Capt. Post could not get possession.”

“ The firm of Hurlbut & Co., had always occupied the back office, as a private office.”

Russel H. Post, the defendant testified that, “Hurlbut & Co., had the exclusive use of the back room, except that we went in, occasionally, to speak to them about business—soon after the copartnership of Post & Ryerson was formed, we applied to Hurlbut & Co. for the back office, and tried to get possession of it, to put in a desk there, and we told them, that by the contract they were entitled only to the use of two desks—this was soon after we hired. They said they wanted the exclusive use of that office, and refused to let us have it. They would not consent, and we did not get possession.

“ The reason we did not pay the rent for the last quarter, was because we owed them none. We could not consistently occupy the office. Had no proper use of the office with them, with Lay-ton and Ryerson carrying on an opposition on the same floor, and keeping the back office and so much of the front. Under such circumstances, the office was of no value to us, but we remained there until May.”

John H. Ryerson, testified that “Hurlbut & Co. occupied the rear office. There were two desks at the time. * * I rather think I made objection about the desk room in the back office. I told Hurlbut we thought we ought to have desk room in the back office to transact private business, with Hattrick Hurlbut. There were two desks and the sofa. One or the other was generally vacant, and there was no necessity for another. I think Capt.. Post went in and had some high words with Hurlbut, but cannot say what it was about.

*39“ I never recollect, but once, of Capt. Post having high words in the back office. I never went but once¡ to my knowledge, to the back office, to see about the desk-room.”

This is the whole evidence relating to the question of eviction, or failure to put Post and Ryerson in possession of the whole premises leased to them.

It is to my mind quite clear that there was no pretence of an entry by the plaintiffs on the demised premises) and of an expulsion, by them, of the defendants from any part thereof.

The great effort was, to prove that the plaintiffs wrongfully kept exclusive possession of a part, from the date of the lease, and continued to withhold it until the 1st of May following.

The charge of the Judge, and the question submitted by him, harmonize with this view.

He charged, “ that if the plaintiffs withheld from the defendants a portion of the premises, beyond the use of the two desks mentioned in the agreement, without the consent of the defendants, and against their will, from February 1, 1855, to May 1, 1855, such withholding entitled the defendants to a verdict.

“ To which plaintiffs’ counsel excepted.”

The second question submitted was—“ Did the plaintiffs withhold from the defendants a portion of the premises, (beyond the use of the two desks mentioned in the agreement), without the consent of the defendants and against their will ? If yea, did that withholding continue from 1st of February, 1855, down to the 1st of May, 1855 ?”

Answer—“ Yes.”

The defence set up in the answer was, that “the plaintiffs wrongfully entered upon the said demised premises, and evicted the said defendants and the said Dunning from a part thereof, to wit, on or about the 1st of September, 1854, which eviction was continued during the Whole residue of said term.”

Hence the plaintiffs objected to evidence that, they had at all times had exclusive possession of the back office from the time of making the lease) as inadmissible under the pleadings. But the judge ordered the answer amended so as to admit, and thereupon received such evidence.

It seems to me, therefore, quite clear that all that the defendants tried to prove, and all that the jury have found, is that the *40defendants never had full possession of all they hired. It is not a case, therefore, of an entry by the lessees into possession, and a subsequent expulsion of them by their lessors from a part, either by force, or by acts recognized in law as of equivalent effect.

I find no decision to the effect, that when the lessees never obtained possession of all they hired, but entered upon and enjoyed a part during'the term, that they are not liable to pay anything for the part they actually enjoyed.

The contrary was held in Etheridge v. Osborn, 12 Wend. 529.

The same rule is asserted in Lawrence v. French, 25 Wend. 443-447. The observations of the Court in the case last cited are open to the objection, that that question was not before the Court for adjudication.

In Christopher v. Austin, 1 Kern, 218, the Court say, that where the tenant enters, but is prevented from obtaining the whole of the premises, by a person holding a part under a prior lease from the landlord, it has been placed upon the same footing as an eviction by title paramount, and the landlord has been permitted to recover for use and occupation, on a quantum meruit,” and cite Lawrence v. French, 25 Wend. 443; Ludwell v. Newman, 6 T. R. 458; and Tomlinson v. Day, 2d Brod. & Bing. 680.

The facts of this case are peculiar. By the lease, the lessors reserved the use of two desks for their private business. The acts of the parties show an understanding by all, that the lessors were to have the two desks, which were in a small room by themselves, and which room had always been used as a private office. The lessors were also serving the lessees, for a commission. Under such circumstances, if nothing more occurred than a demand by the lessees of the right or permission to put a desk in the back office, and that was refused by the lessors, and after that the whole rent was paid without complaint or objection, and Post did not demand any such permission after he and Ryerson had dissolved, the whole ought to be regarded either as an acquiescence by the lessees in the propriety of the refusal by the lessors to consent to have a desk placed in that room, or as presenting a case in which possession of every part of the demised premises was never given to the lessees.

The view, most unfavorable to the plaintiffs, which can be *41taken of this case, upon the evidence, the charge of the judge, and the fact specially found by the jury, is, that the' defendants never had possession of all they hired.

If they did not, but took and occupied a part, without insisting that they must have the whole, or they would pay nothing, they are liable to pay, upon the principle of a quantum meruit, for that which they have actually enjoyed.

I think, therefore, that the jury were erroneously instructed as to the legal effect of the fact, which they found in answer to the question secondly submitted.

The fact that, the plaintiff, after the dissolution of Post & Ryerson, rendered no services for either, is no bar to a recovery in this action.

Post & Ryerson dissolved on the 6th of January, 1856. They dissolved on the evident understanding that, each was thereafter to prosecute a rival business on the premises, until the first of May thereafter, for his own benefit. They agreed what part of the demised premises each one should occupy, as his own, during that period.

Post formed a partnership with Smith & Dunning, and Ryerson with Laytin & P. H. Hurlbut.

After the dissolution of Post & Ryerson, the plaintiffs could render no services to that firm, nor could they have the responsibility of that firm‘for any services they might render to either Post or Ryerson.

It being impossible to render services for them, they were not obliged to remain unemployed. And, Post & Ryerson having dissolved, in order each to prosecute the same business on his own account, and each one forming a new firm for the purpose' of carrying on such business, and on the same premises, the fact that one of the plaintiffs became a partner of Ryerson, and that such firm was advertised at the time it was formed, no objection being made to it by Post, is quite conclusive to show that, neither Post nor Ryerson considered that either of them had any claim upon the future services of the plaintiffs, or that either of them should abstain from serving either Post or Ryerson, under such ' arrangements as either of the latter might make with them.

Post & Ryerson are bound by their covenant to pay the stipulated rent. They have, in fact, had the enjoyment of the pre*42mises up to the first of January 1855 jointly, and thence to the first of May, 1855, of such separate parts in severalty, as conformed to arrangements made solely by themselves.

By the agreement of dissolution between Post & Ryerson, Ryerson was to have exclusive possession of the whole of the demised premises from and after the first of May 1855, or as soon thereafter as Post could get possession of 85 South street.

As the case now stands, it does not appear that, either of the plaintiffs made any agreement with either Post or Ryerson, which affected the duration of the lease, or the claims of the plaintiffs under it. The failure to render services to Post & Ryerson, after they dissolved, does not affect the plaintiffs’ right to recover.

On the evidence given, it cannot properly be said that, Post established a cause of action in his favor against the plaintiffs.

And if he had, it is not such a matter as falls within the definition of a counterclaim.

In a suit against two, as partners, a several claim, in favor of one defendant only, cannot be enforced as a counterclaim. The separate judgment in favor of the defendant Post is erroneous.

If the plaintiffs, on another trial, on their pleadings as they may be amended, or on the facts that may be proved, shall be reduced to the necessity of recovering the fair worth of the part actually occupied by Post, and to elect whether they will proceed against him alone, or Ryerson alone, it may be quite proper, in order to ascertain what would be a just compensation for the part occupied by either, to admit proof of the nature of that occupation, and of its value as it was in fact enjoyed, as compared with such enjoyment as the terms of the lease contracted to give. Whatever it may be worth, the plaintiffs are entitled to recover, unless more shall be proved on another trial than appeal’s on the case before us.

The judgment must be reversed, the verdict set aside, and a new trial granted, with costs, to abide the event.

Hurlbut v. Post
1 Bosworth Super. Ct. Rep. 28

Case Details

Hurlbut v. Post
Decision Date
Apr 11, 1857

1 Bosworth Super. Ct. Rep. 28

New York



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