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the fifth, for $1,500, the statement "Premium on account State Insurance Fund." Each check, on its face, in print or in writing, bore this identical statement:

"The receipt on the reverse side of this voucher must be dated and signed by the person

or firm in whose name it is drawn to render it payable by the bank or there must be attached the authority for any substitution."

He answered:

"The state fund and the Attorney General both requested me to proceed, through a com

mon counsel."

In reference to the payment of $2,926.60, made by the Metropolitan By-Products Company, Inc., to the defendant under the name of the Wynkoop Company, less is known concerning the intention of the drawer and payee On the reverse side of each check, in print of the check than has been disclosed in referor writing, appeared the following:

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In the case of every check the name of the payee therein, Wynkoop Company, or Wynkoop Service, was written by the defendant beneath the printed or written receipt.

The purpose of the receivers in remitting the checks is plain to be seen. They were sent to the defendant in payment of a debt to the state. The defendant, the payee, in every instance was required to acknowledge the receipt of the moneys; to acknowledge that by his receipt of the moneys upon the checks the state fund itself pro tanto received satisfaction of its debt. The defendant signed the receipts which were exacted, and thereby made the acknowledgments requested. From these facts the intention of the receivers to transfer an irrevocable title to the moneys paid, and the intention of the defendant to receive the moneys, either as trustee or agent for the state insurance fund, is made perfectly manifest.

ence to the payments made by the checks of the receivers. However, it appears upon the face of the check that it was drawn on account of "Earned Premium, Policy of State Fund No. 22878B, subject to final checking." The same statement appears upon the face of the check, as to the receipt which is required to be signed, as appeared upon each of the receivers' checks. Likewise, a similar receipt appears upon the back of the check. We think that sufficient is disclosed to indicate that the drawer of the check intended to transfer irrevocable title to the moneys drawn, and that the payee, the defendant, intended to receive the moneys as trustee or agent for the state insurance fund.

On the whole case, therefore, we think the state, in this action for money had and received, was entitled to recover the sums paid to the defendant, and the judgment should be affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, and O'BRIEN, JJ.,

concur.

Judgment affirmed.

(248 Ν. Υ. 64)

KINSVILLE, BOROUGH OF RICH-
MOND, CITY OF NEW YORK.

Further proof appears to indicate the intent of the defendant to receive the moneys on behalf of the state fund. On the 10th day of December, 1918, several months after the In re UPPER NEW YORK BAY IN TOMPchecks had been received, the defendant filed a petition in the federal court for the purpose of obtaining an order directing the receivers to make further payments upon the indebtedness to the state fund. In the petition he stated that he had received a bill for premiums rendered by the state insurance fund. In regard to the bill he said:

"The bill amounts to the sum of $45,067.01, but there is only due thereon the sum of $34,567.01 because of the fact that the sum of $10,500 has been paid on account."

Thus does he represent that the previous payments by checks of the sum of $10,500 to himself were in fact payments to the state. In regard to the proceedings which followed the filing of the petition, he was asked this question:

"In the United States court proceedings, were you acting for yourself alone or were you acting for yourself and the state fund?"

PETITION OF STATEN ISLAND RY. CO. Court of Appeals of New York. May 1, 1928. Eminent domain247(3) - Service of written demand for interest on condemnation award within six months after decree reducing award of lower court held in time (Greater New York Charter, § 981 [Laws 1901, c. 466]).

Service of written notice on comptroller, demanding payment of amount finally awarded, with interest, for lands taken by city in condemnation proceedings, within six months after decree of Appellate Division reducing award of Special Term, held within six months after filing of final decree, so that interest on award had not ceased to run under Greater New York Charter, $ 981 (Laws 1901, с. 466).

Appeal from Supreme Court, Appellate Division, Second Department.

(161 Ν.Ε.)

Proceedings by the City of New York and 2. Partnership 74-Stock received by de

others to acquire right and title to certain property for improvement of the water front of such city, in which the Staten Island Railway Company moved for an order directing Charles W. Berry, as Comptroller of such city, to pay interest on an award. From an order of the Appellate Division (223 App. Div. 731, 227 N. Y. S. 783), reversing an order of the Special Term, which denied the motion, and granting the motion in part, the city ap peals. Affirmed.

George P. Nicholson, Corporation Counsel, of New York City (Henry W. Mayo, of New York City, of counsel), for appellant.

R. E. T. Riggs and A. S. Gilbert, both of New York City, for respondent.

PER CURIAM. The Greater New York Charter, in section 981 (Laws 1901, c. 466) thereof, provides that interest upon all sums awarded in condemnation proceedings shall cease to run "six months after the date of the filing of the final decree" unless "within that time demand therefor, in writing, be served upon the comptroller." The decree made at Special Term, providing for an award to claimant for lands taken, was modified by the Appellate Division, which made a decree providing for an award in a lesser amount. Within six months thereafter the claimant served a written notice upon the comptroller demanding payment of the amount awarded by the modified decree, with interest. In our judgment, the notice was served upon the comptroller within six months "after the date of the filing of the final decree," and therefore interest upon the award has not ceased to run. This was the holding in Matter of City of New York, 209 App. Div. 662, 205 N. Y. S. 247, affirmed 239 N. Y. 524, 147 Ν. Ε. 179.

The order should be affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, LEHMAN, and KELLOGG, JJ., concur. ANDREWS and O'BRIEN, JJ., not sitting.

Order affirmed.

(248 Ν. Υ. 67)

RAYMOND v. DAVIS' ESTATE.

Court of Appeals of New York. May 1, 1928. 1. Joint adventures4(1)-Profits of joint venture are determinable only by winding up business through liquidation of assets.

Profits of joint venture remain unknown, and cannot be determined without winding up of business through liquidation of assets.

ceased partner for land conveyed by partnership constituted partnership assets, subject to repayment of advances made by deceased partner (Partnership Law, §§ 40, 71).

Shares of stock received by deceased member of partnership in consideration of conveyance of land to corporation did not constitute cash, but were held as a substitute for the land and as partnership assets, subject to equitable lien for repayment of advances made by deceased partner, under Partnership Law (Consol. Laws, c. 39) §§ 40, 71, and could not be considered as profits or be ratably apportioned until repayment of such advances.

3. Partnership249-Surviving partner held not entitled to establish claim against estate of deceased partner for profits prior to liquidation of all partnership assets and repayment of advances (Partnership Law, §§ 40, 71).

Where partnership was formed to deal in marl and lime lands, one of partners, since deceased, making advances and taking shares of stock of corporation and cash in consideration of conveyance of partnership's property, surviving partner who also took parcel of land in his name was not entitled to establish claim against estate of deceased partner on account of stock and cash received by deceased, under Partnership Law (Consol. Laws, c. 39) §§ 40, 71, prior to liquidation of all of partnership assets and repayment of advances made.

4. Partnership249-Estate of deceased partner was not chargeable with value of stock at time it was taken by deceased for partnership property, where stock subse-quently became worthless.

In proceedings by surviving partner to establish claim against estate of deceased partner on account of stock taken by deceased in payment for partnership land, which stock had since become worthless, estate was not chargeable with estimated value of stock at time it was taken in payment.

5. Partnership249-Land held in name of surviving partner, which was purchased with partnership funds, constituted partnership asset.

On claim of surviving partner against estate of deceased partner for share of profits of partnership, land held by surviving partner, purchased with partnership funds, constituted partnership asset, was required to be liquidated, together with assets held by estate of deceased partner, and mere allowance of payment made by deceased in the purchase of the land as a credit to be deducted from the value of partnership property held by the estate was improper in determining profits.

6. Executors and administrators 94-Surrogate's court on presentation of claim by surviving partner against estate of deceased partner had jurisdiction to order liquidation of partnership assets (Surrogate's Court Act, § 40).

Surrogate's court on presentation of claim by surviving partner against the estate of de

ceased partner held to have jurisdiction to order liquidation of partnership assets as incident to allowance or rejection of the claim, under Surrogate's Court Act, § 40, giving court authority to act in "all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter."

Appeal from Supreme Court, Appellate Division, Fourth Department.

Proceeding by Frank Raymond to establish a claim against the estate of Andrew Davis, deceased. An order of the Surrogate's Court, establishing and liquidating the claim, was modified and affirmed by the Appellate Division (220 App. Div. 480, 221 N. Y. S. 675), and the estate appeals. Order of Appellate Division reversed, and case remitted.

John Griffin, of Hornell, for appellant. Nelson J. Palmer, of Dunkirk, for respondent.

CARDOZO, C. J. Frank Raymond and Andrew Davis formed a partnership or joint venture in 1916 to deal in lands in Chautauqua county. The thought was that there were deposits of marl and lime which would permit a profit to be made if the lands were worked or sold. Raymond was to supply the knowledge and Davis the cash, the profits to be divided a third to one and two-thirds to the other. The project went forward on that footing. There were surveys and options and contracts and conveyances. One parcel, known as the Bremer property, paid for like the rest with money supplied by Davis, was left in Raymond's name. Other parcels were conveyed to a corporation, the Bone Dry Lime Corporation, of which Davis was president, in return for cash and shares of stock. This was in March, 1918. The cash went to Davis, but it did not exceed $5,000, after allowance made for expenses incurred in consideration of the payment, if indeed it was as much. The shares, which went to Davis also, had a par value of $15,000, but their actual value was uncertain, and from whatever value they might yield, there would be need to deduct his payments for the land before the profit could be measured.

Davis died a few months later, in December, 1918, with the joint venture still subsisting. There is no evidence that an accounting had been asked for or refused. There is none of a disclaimer of a partnership relation. Raymond waited a year and a half, and then put in a proof of claim for upwards of $11,000. He framed his proof upon the theory that a third of the gross assets, and not merely a third of the profits, was to be his share of the common venture. There were three trials before a surrogate or

a county judge with varying results. On the third trial a decree was made for the allowance of the claim to the extent of $5,000. The Appellate Division upon an appeal by the executrix cut the claim still lower. By the findings of that court, Raymond's share was a third interest in the profits of the venture, and not in the gross assets. Davis, according to the findings, had received $5,000 in cash and shares of stock of the value of $15,000, $20,000 in all. He had expended, however, for principal and interest, $15,231.95, in taking title to the lands. This left a net profit of $4,768.05, of which a third is $1,589.35. The recovery due to Raymond was fixed at that amount, with interest. In addition he was held to have the right to retain the Bremer property free from any claim on the part of the estate.

[1-4] The profits of the joint venture remain unknown and unknowable without a winding up of the business through a liquidation of the assets. Crater v. Bininger, 45 N. Y. 545, 548; Bank of British North America v. Delafield, 126 N. Y. 410, 415, 27 Ν. Ε. 797; Wilcox v. Pratt, 125 N. Y. 688, 25 N. Ε. 1091; Belanger v. Dana, 52 Hun, 39, 43, 4 N. Y. S. 776. Liquidation there has never been. Davis was not chargeable with the estimated value of the shares when issued as if in taking them he had received what was equivalent to cash. There is nothing in the record to suggest an understanding that he took them on that basis. The shares were not cash, but a substitute for the land, and were to be held like any other asset as a partnership investment, subject to an equitable lien for the repayment of advances made by either partner as a contribution to the capital. Partnership Law (Consol. Laws, c. 39) §§ 40, 71; Pollock on Partnership, p. 118. Not till the advances had been repaid either through a sale of shares or otherwise could profits be determined. Chapin v. Learnard, 246 N. Y. 158, 158 N. E. 58; Id., 246 Ν. Y. 629, 630, 159 N. E. 679. Not till then were the shares or the proceeds to be ratably apportioned. The shares are worthless to-day, for the corporation has become insolvent. We find no basis for a holding that the executrix is to be charged with their estimated value in the heyday of gladsome expectation when the venture was still young. If the loss is to be attributed to her inaction or misconduct, the fact has not been proved.

[5] Liquidation would be incomplete, however, though the shares were accounted for as money. The Bremer property, too, is an asset of the partnership, though held in Raymond's name. Instead of treating it as such an asset, he has incumbered it with a mortgage and claims it as his own. The decision of the Appellate Division upholds him in this assertion of title and dominion. We hold a different view. True, indeed, it is that the payment made by Davis in the purchase of the Bremer parcel has been allowed to his estate as a credit to be deducted from the value of the shares of stock. The only effect of that deduction is to free the parcel from a lien for capital expenditures, and leave it to be divided between the partners according to their interests. A balance cannot be struck until this asset has been liquidated.

(161 Ν.Ε.)

[6] There remains a question of jurisdiction and procedure. Liquidation may be ordered by a decree of the surrogate as an incident to the allowance or rejection of a claim to share as creditor in the assets of the estate. Only by such relief can there be complete justice between the parties without oppressive expense or harrowing delay. A Surrogate's Court has jurisdiction:

"To administer justice in all matters relating to the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any proceeding, or between any party and any other person having any claim or interest therein who voluntarily appears in such proceeding, or is brought in by supplemental citation, as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires." Surrogate's Court Act, § 40.

Early decisions were made upon the basis of a different grant of power. They deny the competence of a surrogate to decree the winding up of the business of a partnership, though liquidation be a necessary preliminary to the determination of a controversy lawfully before him. Thomson v. Thomson, 1 Bradf. Sur. 24, 35; Matter of Irvin, 87 App. Div. 466, 470, 84 N. Y. S. 707. We must hold them superseded by the provisions of the statute. An amendment in 1921 emphasizes the call for a liberal construction. Till then the general grant of jurisdiction had at times been read as limited by specific grants of jurisdiction as to enumerated subjects. Matter of Mondshain's Estate, 186 App. Div. 528, 174 N. Y. S. 599; Matter of Holzworth, 166 App. Div. 150, 151 N. Y. S. 1072; Id., 215 N. Y. 700, 109 Ν. E. 1079. The amendment gives notice that the powers that are specific shall hereafter be read as being "in addition to and without limitation or restriction on" the powers that are general. Matter of Van Buren v. Estate of Decker, 204 App. Div. 138, 198 Ν. Y. S. 297; Matter of Haigh's Estate, 125 Misc. Rep. 365, 367, 368, 211 N. Y. S. 521. Cf. Matter of Kenny, 92 Misc. Rep. 330, 156 N. Y. S. 827. "Concentration of jurisdiction as to decedents' estates" (per Foley, S., in Matter of Haigh's Estate, supra) is the purpose clearly

revealed in the statutory scheme. "The state has empowered surrogates in unmistakable language, and it is not the function of the courts to discover or to fashion reasons for thwarting the manifest policy." Per Thomas, J., in Matter of Coombs, 185 App. Div. 312, 314, 173 N. Y. S. 58, 60. To remit the claimant to another forum after all these advances and retreats, these reconnaissances, and skirmishes, would be a postponement of justice equivalent to a denial. If anything is due him, he should get it in the forum whose aid he has invoked.

The order of the Appellate Division should be reversed, with costs to abide the event, and the matter remitted to the Surrogate's Court for further proceedings in accordance with this opinion.

POUND, CRANE, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur. ANDREWS, J., not sitting.

Ordered accordingly.

(248 Ν. Υ. 73)

TURNER v. EDISON STORAGE BATTERY

CO.

Court of Appeals of New York. May 1, 1928. 1. Sales246-Warranty is an incident of

sale.

Warranty is an incident of a sale.

2. Sales255-There can be no warranty without privity of contract (Personal Property Law, § 93).

There can be no warranty, under Personal Property Law (Consol. Laws, c. 41), § 93, where there is no privity of contract, and in such case a cause of action for breach of warranty, either express or implied, cannot be stated.

3. Pleading369(1)-Plaintiff could not be compelled to elect between inconsistent causes of action and to strike out cause not so elected, where it appeared on face of complaint that pleading of one cause was incontrovertibly bad (Civil Practice Act, § 258; Rules Civil Practice, Rule 102).

Plaintiff could not, under Civil Practice Act,

§ 258, be compelled to elect between causes of action claimed to be inconsistent, and, under Rules Civil Practice, Rule 102, be compelled to strike out the cause of action not so elected, where it appeared on the face of the complaint that the pleading of one of the two causes of action was so incontrovertibly bad that the mere statement revealed its insufficiency. 4. Sales 255-Purchaser from merchant could not state cause of action for breach of warranty against manufacturer; contractual relationship not existing.

Purchaser of storage batteries from merchant could not state a cause of action against

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the manufacturer for breach of warranty, since (Roberts v. Anheuser Busch Brewing Ass'n, contractual relationship was nonexistent.

5. Appeal and error 843(1)-Court cannot answer certified question not necessary to proper determination of appeal.

On appeal, court could not answer certified question, where answer was not necessary to proper determination of appeal.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Philip Turner against the Edison Storage Battery Company. An order of the Special Term denying defendant's motion to compel plaintiff to elect and serve an amended complaint was reversed on law and facts, and motion granted by the Appellate Division (222 App. Div. 826, 226 N. Y. S. 394), and plaintiff appeals therefrom by permission. Appeal dismissed.

Ezra B. Kotcher and Benjamin Wieser, both of New York City, for appellant.

Roger Hinds, of New York City, for respondent.

POUND, J. [1, 2] The complaint alleges that the defendant is a manufacturer of storage batteries, and that plaintiff purchased from the Fisher Hardware Company a battery manufactured by the defendant. Plaintiff attempts to state two causes of action against the defendant, one in negligence (MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 Ν. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440), and one for breach of warranty. In pleading the second cause of action, he alleges that defendant warranted the battery to be safe; that he relied on the warranty; and that injury was sustained by breach of warranty. Warranty is an incident of a sale. Levis v. Pope Motor Car Co.,. 202 Ν. Υ. 402, 95 N. E. 815; Personal Property Law (Consol. Laws, c. 41), § 93. The complaint negatives a sale by the defendant to the plaintiff and any contractual relation between the plaintiff and the defendant. There can be no warranty where there is no privity of contract. A cause of action for breach of warranty, either express or implied, is not, and cannot be, stated. Chysky v. Drake Bros. Co., 235 N. Y. 468, 472, 139 Ν. Ε. 576, 27 A. L. R. 1533. The goods may have been sold to the Fisher Hardware Company with a so-called written and continuing warranty for the benefit of the ultimate purchaser. A cause of action for deceit conceivably might arise from such a transaction

211 Mass. 449, 98 N. E. 95), or for negligent words (International Products Co. v. Erie R. Co., 244 N. Y. 331, 155 N. E. 662), but no suggestion is made of an attempt to plead such a cause of action.

[3] The motion is to require plaintiff to elect between causes of action claimed to be inconsistent (Civ. Prae. Act, § 258), and to strike out the cause of action not so elected (Rules Civil Practice, 102). The court has said, "to make out a misjoinder it is not necessary that the separate causes of action should have been well stated. It is enough that there was an attempt to state them." Cardozo, J., in Jacobus v. Colgate, 217 N. Y. 235, 247, 111 N. E. 837, 841 (Ann. Cas. 1917E, 369). The argument is therefore made that the motion to compel an election was properly granted without regard to the sufficiency of the allegations of warranty. But the rule has never been applied to a case where it appears on the face of the complaint that the pleading of one of two causes of action is so incontrovertibly bad that the mere statement reveals its insufficiency without argument.

[4] By no theory of legal liability can plaintiff completely and sufficiently state the cause of action for breach of warranty that he has attempted to state. The nature of any other claim is not pointed out, and cannot by reasonable and fair intendment be implied, nor would plaintiff under his pleading be entitled to give the necessary evidence to support another claim. The cause of action pleaded is wholly bad. Clark v. West, 193 N. Y. 349, 362, 86 N. E. 1. The motion is to compel an election between causes of action. Plaintiff should not be compelled to elect between a cause of action and no cause of action. He may attempt to plead a new and wholly different cause of action in place of the one he has attempted to plead. The question of misjoinder may well await an answer until it becomes essential to the decision.

[5] The question certified, "Are the causes of action as alleged in the complaint herein properly united under section 258 of the Civil Practice Act?" cannot be answered, as the answer thereto is not necessary to the proper determination of the appeal.

The appeal should be dismissed, without costs.

CARDOZO, C. J., and CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

Appeal dismissed.

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