former copartners, Arbuckle, Jamison, and Smith, united in submitting to the Secretary of the Treasury a written offer to compromise all civil claims and demands growing out of the importation of raw sugar by said firm, by the payment of the amount of duties claimed to be unpaid, to wit, the sum of $695,537.19. This offer was accepted and the money paid. Of such amount, plaintiff contributed the sum of $156,087.54, which would be the just and fair proportion thereof chargeable to him, provided, as between himself and the defendants. in this action, he is liable to pay any part thereof. After the offer of compromise had been accepted, but before the final payment of money in accordance therewith, plaintiff and his copartners entered into an agreement in writing. This agreement (after reciting that by virtue of the dissolution articles of April 4, 1906, plaintiff claimed that no obligation rested upon him to pay any portion of said amount, but that by reason thereof Arbuckle and Jamison should pay the whole of the sum offered and accepted in compromise, and further reciting that Arbuckle and Jamison did not accede to such contention) provided— "that all payments made by any of the parties hereto shall be without prejudice against each other, that no presumption is raised against any of the parties hereto by reason of such payments."

Thereafter this action was brought against John Arbuckle and William A. Jamison to recover said sum of $156,087.54. Pending the action John Arbuckle died, and it was continued against his administrators. Trial by jury was waived, and from a judgment entered upon a decision of the Special Term in defendants' favor, plaintiff appeals.

We may dismiss without determination respondents' contention that the payment made by plaintiff in connection with his former partners to the United States government was a voluntary payment upon his part, or that the obligation thus discharged was not, strictly speaking, a debt of said firm. We prefer to rest our decision upon the ground that it was plaintiff's duty to his partners to pay his proportionate share of such claim, treating it as a firm indebtedness. We think that the fair construction of that portion of the dissolution agreement, to the effect that plaintiff should be paid "the value of his share in the copartnership property, taken as of January 1, 1906," requires that an accurate account should be taken to determine such value. Upon the credit side of the account should be entered the "inventoried value of the assets" other than those which by the terms of said agreement were to be disposed of by sale, or taken over at a fixed price or distributed in kind. Upon the debit side of the account should be entered all actual debts and obligations of the dissolving firm, whether at the date of such dissolution known or unknown. Plaintiff's proportion of the balance remaining, as fixed by the copartnership articles, to wit, 25 per cent. thereof, was the "value of his share in the copartnership property." This was the purchase price of the "remaining assets" of the firm which Arbuckle and Jamison were to take over. A fixed sum had been agreed upon for "trade-marks," "good will," and "appreciation." Rather than close the books on June 1, 1906, and determine the exact amount of plaintiff's interest in the profits for this.

fraction of a year, the parties again agreed upon a fixed sum, which, greater or less, the retiring partner bound himself to accept and the continuing partners obligated themselves to pay. If the value of the "remaining assets" was to be determined by the inventoried value thereof, with no deduction for liabilities, the agreement for dissolution would naturally have provided for the payment of a third fixed sum to plaintiff, namely, his proportionate share of such inventoried assets, disregarding liabilities. It would have been quite feasible in April to determine what the inventoried assets were in the preceding January, since by the partnership articles the books were to be closed and an inventory made on the 31st day of December in each year. That it did not do so clearly indicates that not only inventoried assets but existing liabilities should enter into the computation.

[2] If ambiguity exists in a contract, the practical construction put upon it by the subsequent conduct of the parties thereto is a valuable aid in determining its true meaning. Wald's Pollock on Contracts (3d Ed.) 451; Winchester v. Glazier, 152 Mass. 316, 323, 25 N. E. 728, 9 L. R. A. 424; Woolsey v. Funke, 121 N. Y. 87, 24 N. E. 191. On three separate occasions prior to December, 1909, defendants rendered to plaintiff a statement as to his interest in the partnership property, each of which statements was accepted by him without protest. In each of these liabilities were deducted from gross assets, and settlements had upon that basis. Plaintiff does not now claim that such statements and the settlements based thereon were erroneous with one exception, which is the subject of another action.

[3] Again, the liabilities which defendants were authorized to deduct were all existing liabilities, whether shown upon the books or not. It was not by its terms limited to liabilities entered thereon. If it had been, appellant's case would more clearly resemble State Bank v. Napier, 46 App. Div. 402, 61 N. Y. Supp. 779, affirmed 168 N. Y. 591, 60 N. E. 121, upon which he greatly relies. Again, the rule of practical construction militates against plaintiff. Upon two of the statements rendered to him, that rendered December 1, 1906, and that rendered June 1, 1907, plaintiff was credited with 25 per cent., his proportionate share of certain accounts which had been charged off to suspense account upon the books of the firm, but had been subsequently collected, and payment of this sum was accepted and has been retained by him. It is true that these items were items of additional credit. But of still greater significance is it that in the first statement rendered, that as of June 1, 1906, there was included an indebtedness of $11,250, which did not appear upon the books of the concern, and which arose in the following manner: Two of the employés of the firm, Turner & Gilmore, in addition to a fixed salary, received as additional compensation an interest in the profits. After the dissolution agreement had been signed, which provided for payment to plaintiff of $2,000,000 for trade-marks, good will, and enhanced value of real estate above the amount at which it was carried on the books, these employés contended that they also were entitled to participate in this "appreciation" to the extent of their percentage interest in the profits. This contention was conceded, and subsequently to the execution of the dissolution

148 N.Y.S.-13

agreement they were paid the sum of $45,000 on account thereof, and thereafter one-quarter of this indebtedness, which nowhere appeared upon the books of the concern until May, 1906, was charged as a liability against plaintiff's account, and included in the statement rendered to him June 1, 1906, and to this charge no objection was made by him. Again, in the statement rendered as of December 1, 1905, another liability, although smaller in amount, existing in 1904 and 1905, not entered in the books nor known to any of the parties to the agreement to exist prior to August, 1906, was entered as a firm liability, and 25 per cent. thereof charged to plaintiff and included in the statement then given to him, and again he acquiesced in, or at least never objected to, the same, and the check then paid to him was for the balance remaining after deducting such liability.

* * *

[4] Neither does the provision of the agreement that "Arbuckle and Jamison agree to assume, pay and discharge all debts, liabilities and obligations of the copartnership" prevent them from charging to plaintiff his proportionate part of the firm's obligation to the United States government in their settlement with him. The usual rule of law as to the liquidation of partnership properties is in this instance confirmed by the provisions of the partnership articles, to the effect that in the event of the withdrawal of a partner, the remaining partners shall pay to him "his net interest in the business as of the date of his withdrawal, * * * taking stock for that purpose." It seems quite clear that it was not the intention of the parties by this clause of the dissolution agreement to vary this well-established rule. Rather the purpose was to establish a rule of convenience to the continuing partners in settling and liquidating the obligations of the former firm. It may be that it made the continuing partners liable as principals and the retiring partner as surety, as between themselves. Morss v. Gleason, 64 N. Y. 204. It may be that the assumption and agreement of Arbuckle and Jamison to pay all debts applied to those unknown as well as known. But this by no means requires that if a debt, unknown at the time of dissolution, is paid, plaintiff should not be charged in settlement with his proportion thereof.

"An agreement to pay debts is not the same thing as an agreement to adopt a certain figure as a partner's credit balance without proper deduction for debts."

[5] Nor is there any force in the contention that the statements rendered in June and December, 1906, and June and December, 1907, are in the nature of accounts stated, so that an action by defendants to set them aside on the ground of mutual mistake or fraud is necessary before plaintiff can be called upon to pay any portion of an indebtedness not included therein. In the first place, defendants are not seeking to set such agreements aside and recover from plaintiff an overpayment because of the existence of a debt then unknown. Plaintiff has himself paid a portion of a debt which he says he should not have paid, and is seeking to recover the amount thereof from defendants. But if it is urged that the agreement, which was entered into after compromise with the United States government had been agreed up

on, and before the money was actually paid, precludes this contention

"the rule is well established that a settled account may be impeached and readjusted by proof of unfairness, fraud, or mistake in law or fact.

串

It may not be necessary in such cases to open the whole account, but the mistake can be corrected and the rights of the parties readjusted as to such mistake." Conville v. Shook, 144 N. Y. 686, 39 N. E. 405; Ballard v. Beveridge, 171 N. Y. 194, 63 N. E. 960; Carpenter v. Kent, 101 N. Y. 591, 5 N. E. 787.

Both of the clauses of the dissolution agreement, namely, that relating to the assumption of debts and that which requires that plaintiff shall be paid "the value of his share of the copartnership property," should be read together. If a single debt is omitted in the computation which should have been included, and settlement is made upon the basis thereof, plaintiff would be overpaid the value of his share of the copartnership property to the extent of one-quarter of such omitted debt. The law does not require such construction of the dissolution agreement as would permit this, and good morals forbid it.

The judgment appealed from should be affirmed, with costs. All

concur.

(163 App. Div. 208)

JARVIE v. ARBUCKLE et al.

(Supreme Court, Appellate Division, Second Department. June 5, 1914.) Appeal from Trial Term, Kings County.

Action by James J. Jarvie against Christina Arbuckle and another as administrators of John Arbuckle, deceased, and William A. Jamison. From a judgment in favor of defendants, and from an order denying plaintiff's motion for a new trial on the further order granting defendants' motion for an extra allowance of costs, plaintiff appeals. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, STAPLETON, and PUTNAM, JJ.

Lewis H. Freedman, of New York City (Adrian H. Larkin and Albert Stickney, both of New York City, on the brief), for appellant. William N. Dykman, of Brooklyn, for respondents.

BURR, J. The questions of fact in this case as to whether the sums due to the employés of the Pittsburg house were obligations of the firm or a personal indebtedness of John Arbuckle have been resolved by the verdict of the jury in favor of defendants, and the evidence fully sustains such finding. Within the authority of Jarvie v. Arbuckle, Action No. 1, 148 N. Y. Supp. 189, decided herewith, it follows that the judgment entered in this action in favor of defendants, and the orders denying the motion for a new trial and granting defendants' motion for an extra allowance, should be affirmed, with costs. All concur.

(162 App. Div. 731)

BRUSH v. NEW YORK, N. H. & H. R. CO. et al. (No. 5880.) (Supreme Court, Appellate Division, First Department. May 29, 1914.) 1. RAILROADS (§ 96*)-CROSSING HIGHWAYS-CHANGING GRADE-PROCEEDINGS -LIABILITY.

Compliance with Railroad Law (Laws 1890, c. 565) § 61, as added by Laws 1897, c. 754, now Consol. Laws, c. 49, § 90, providing for new streets across railroads, and for a hearing before the Public Service Commission on notice, is a prerequisite to the initiation of a proceeding to open a For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

street across a railroad; and, where there is no compliance, an owner sustaining damages caused by a change in grade of the street which had not previously been opened across the tracks, by the construction of bridges and abutments to carry the street over the tracks, may sue for the removal of the bridges and approaches, or for damages caused thereby. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 284-290; Dec. Dig. § 96.*]

2. RAILROADS (§ 99*)-HIGHWAY CROSSINGS-CHANGE OF GRADE-Damages— LIABILITY.

Where a grade of a street is changed on the petition of a railroad company and for its convenience, an abutting property owner may recover the damages caused by the change.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 293-295, 297304; Dec. Dig. § 99.*]

3. RAILROADS (§ 99*)-HIGHWAY CROSSINGS-CHANGE OF GRADE-DAMAGES TO ABUTTING OWNER.

A street, which has been maintained for 40 years without having the grade thereof established by law, has, under Greater New York Charter (Laws 1901, c. 466) § 441, an established grade; and a change of grade on petition of a railroad company, for its convenience, renders the company liable for the damages sustained by an abutting property owner.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 293-295, 297304; Dec. Dig. § 99.*]

Appeal from Special Term, New York County.

Action by Abbott P. Brush against the New York, New Haven & Hartford Railroad Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.

Robert L. Luce, of New York City, for appellant New York, N. H. & H. R. Co.

Charles J. Nehrbas, of New York City, for appellant City of New York.

Ralph E. Brush, of New York City, for respondent.

SCOTT, J. The object of attack in this action is a bridge and its approaches, erected by the defendant railroad company for the purpose of carrying Baychester avenue over the tracks of said company. Plaintiff is the owner of lots on Baychester avenue in front of the approach to the bridge. It has been found that the erection and maintenance of said approach has injured the value of plaintiff's said property to the extent of $700, and the judgment appealed from requires the abatement of the alleged nuisance, or, in the alternative, the payment of the ascertained damages.

The Harlem River & Portchester Railroad Company, now leased to and operated by the defendant railroad company, is a steam surface railroad company whose line extends from the city of New Rochelle to the Harlem River. Its original right of way, where it crosses Baychester avenue, was acquired by condemnation in 1871. In 1873 it acquired an additional width of land by deed. Baychester avenue, under the name of Main avenue, first appears, as it is said, on a map filed on September 20, 1873, by one Thomas Tone, who then owned a tract

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes