Troy Iron and Nail Factory v. Corning.

templated or taken into consideration by the said Marshall, Merritt and White in determining the proportion to be paid hs aforesaid by the defendants towards the expense of the enterprise provided for by the said act. The defendants further stated that the said proportion and estimate, so as aforesaid made and determined by the said Marshall, Merritt and White, had been rendered by such unauthorized purchase and expenditure unequal, inequitable, oppressive and unjust towards the defendants, and they were not liable therefor. That the said association had, against the wishes of the defendants and against their express protest, made purchases of real estate, and expended large sums of money and incurred liabilities unauthorized by the said act, and unauthorized by the said articles of association, and after the defendants had expressly notified the said association that they objected thereto and would not be liable therefor, and that the moneys claimed in this suit were a part of the price of such unauthorized purchases. The defendants also alleged that the said association had wholly changed the object and extent of the enterprise as it was originally designed and intended. And they asked affirmative relief in the premises, that the court might determine the rights of all the parties; and that in case the court should adjudge the defendants liable to any extent whatever, that they should order and adjudge that the award and determination of the said Marshall, Merritt and White be corrected or modified, and so adjusted as to render the proportion of the expenses to be paid by the defendants proportionate to the benefit and advantages derived from the said association; and that in case the court should determine that said articles of association did not conform to the said act, the said articles be vacated or reformed so as to conform thereto. And that the defendants be allowed to withdraw from the said association, upon such terms and conditions as the court should deem proper and just; and that such terms and conditions be determined and fixed by the court.

Troy Iron and Nail Factory. v. Corning.

The cause was tried before Justice PECKHAM, without a jury, at the Rensselaer circuit, held in October, 1863, and after due deliberation the Justice found as follows: That an act of the legislature of this state was passed April 21, 1846, as stated in the complaint. That for the purpose of carrying out and effecting the object and purposes of the said act, various persons and firms owning and occupying mill privileges and establishments on the stream in said act mentioned, entered into and executed the articles of association set forth in the complaint, as is in said complaint stated. That the several parties named in the said articles of association signed and delivered the same, with the exception of Thomas Howland and Jonathan Richardson. That before signing the said articles, the property of the said Thomas Howland, was sold and conveyed to the plaintiffs, Joseph W. Smart and Andrew J. Smart, who thereafter, signed the said articles, and that before signing the said articles, the said Jonathan Richardson sold and conveyed his property mentioned in the said articles to the said plaintiff, Robert T. Smart, who thereupon signed the said articles. That the Troy Woolen Company, mentioned in the said articles, was a corporation organized under and by virtue of the laws of this state; that its charter expired before the commencement of this action, and all its property and effects were before that time transferred and conveyed to a firm by the name of the Troy Woolen Company, which firm subsequently and before the commencement of this action, signed the said articles of association. That all the property and effects of the Albia Cotton Factory, mentioned in the body of the said articles of association, were transferred and conveyed to the said the Troy Woolen Company and is now owned by the said firm, the Troy Woolen Company, and were so owned before the commencement of this action; and that the said firm of the Troy Woolen Company signed the said articles, as such owners, before the commencement of this action. That the property and effects of the Sand Lake Cotton Factory, mentioned in the body of the said articles of

Troy Iron and Nail Factory v. Corning.

association, were transferred and conveyed to the plaintiffs Hezekiah C. Arnold and George C. Arnold, before the commencement of this action, and the said Hezekiah C. and George C. signed the said articles of association before the commencement of this action.

That the property of Isaac Merritt, executor, &c. of R. P. Hart, deceased, mentioned in the body of the said articles of association, was transferred and conveyed before the commencement of this action, to John F. Winslow, Joseph M. Warren and John A. Griswold, who have not signed the said articles of association, and that such transfer was made and notice thereof in writing given, as required by said articles, by the said Isaac Merritt, executor, &c. to the said association before the cause of action herein accrued. That all the other parties mentioned in the body of said articles of association signed the same, and now own the property in reference to which their subscriptions were severally made. That the defendants, at the time of subscribing the said articles of association, were partners doing business under the firm name of the Albany Iron Works, and subscribed the said articles as such partners.

That the said association formed under the said act has preserved and continued its organization in the form and manner required by the said articles and act. That under and by virtue of the said articles and act, the said association acquired the title to a considerable real estate, but not exceeding in annual value or income $2000, which became vested in the trustees thereof as provided in said act and articles, and still remains so vested. That a considerable amount of money has been expended by the said associates, in accordance with the said act and articles, in prosecuting the objects of the said association. That the stream of water in the said act and articles mentioned, without the improvements contemplated and intended by the said act and articles, and made there under as aforesaid, would furnish a water power greatly inadequate to the necessary requirements of the respective

Troy Iron and Nail Factory v. Corning.

works and establishments located thereon and belonging to the said several parties so associated by the said articles; and that various erections and improvements have been necessarily made by said association, and considerable sums of money from time to time expended therefor, which have been assessed upon the said associates in the manner provided by the said articles of association, which said assessments, including the share of Isaac Merritt, executor, have been regularly paid by the said associates, except the said defendants; and that the said defendants have hitherto had and still continued to have the benefits of such expenditures and improvements. That of the assessments so as aforesaid made against the said defendants, there remained due from the said defendants at the commencement of this action the sum of $1791.90, besides interest. That of the said sum of $1791.90, the sum of $213.56 became due from the said defendants on the 15th day of January, 1859, and payment thereof was then demanded of the said defendants; and the sum of $1578.34 became due March 15, 1860, and was then demanded of the said defendants, but the said defendants neglected and refused to pay the said sums or either of them, or any part thereof, and have hitherto so neglected and refused.

That the mode of assessing the expenditures of said association, as provided in its said articles, was not adopted or procured through mistake or fraud. Nor was the same, at the time of the making thereof, nor has the same since become, unjust, oppressive or inequitable. Nor has the same become impracticable under said articles, and the defendants have not shown any equity entitling them to any relief from the said articles or assessment, or to any reformation or modification thereof.

From these facts the referee found and decided that the defendants were indebted to the said association in the sum of $213.56, with interest thereon from the 15th day of January, 1859, and the sum of $1578.34, with interest from March 15, 1860, amounting to the sum of $2171.71. And he directed

Troy Iron and Nail Factory v. Corning.

judgment to be entered in favor of the plaintiffs against the defendants, for the said last mentioned sum, with costs.

Various questions were raised upon the trial, and decisions made to which exceptions were taken, which will appear in the opinion. Judgment was entered in favor of the plaintiffs, and the defendant appealed to the general term of the Supreme Court.

D. L. Seymour and A. C. Paige, for the defendants and appellants.

W. A. Beach, for the respondents and plaintiffs.

MILLER, J. This suit was brought to recover the amount of an assessment made upon the defendants, as members of a voluntary association, known as the "Wynant's Kill Improvement Association," formed under an act of the legislature of this state, and to compel the defendants specifically to perform the covenants and conditions contained in the articles of association on their part, to be performed by the agreement entered into by them. Both the plaintiffs and the defendants were members of the association, and the plaintiffs' right to a recovery is based upon the rule that for a breach of an express covenant contained in the articles of partnership, one partner may suę another at law, without praying for a dissolution, or for an account.

Various objections are taken to the plaintiffs' right to recover, which I will proceed to examine and consider.

It is urged that the copartnership was dissolved before the purchase of the Knowlson farm and lease, on the fourth day of July, 1859.

1. By the sale of the property mentioned in the complaint as "the property of Isaac Merritt, executor &c. of R. P. Hart, deceased," to other parties.

2. By the change of the ownership of the property of the Troy Woolen Company, a corporation, and of the property