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Health, 86 App. Div. 522, 83 N. Y. Supp. 800, affirmed 176 N. Y. 602, 68 N. E. 1123. Or where the term has expired. Matter of Tiffany, 179 N. Y. 455, 72 N. E. 512.

Perhaps the nearest case to that presented on the record here is that of Matter of Kenney, 52 App. Div. 385, 65 N. Y. Supp. 204, where a peremptory writ of mandamus was asked to restore the relator to the position of a sewer inspector. It appeared the relator was appointed an inspector on a sewer in process of construction; that when cold weather came work was suspended with the sewer uncompleted. The relator's services were then dispensed with. The following spring work on the sewer was resumed, and the relator asked to resume his work as inspector, but the writ was denied. In the case of People v. Williams, 140 App. Div. 723, 125 N. Y. Supp. 583, it was held that, where a veteran was employed in a state department for no stated term, he might be discharged when the funds available for the payment of his salary have been exhausted. To the same effect

the case of Matter of Barton, 141 App. Div. 295, 126 N. Y. Supp. 47. In the matter of Vincent v. Cram, 27 Misc. Rep. 158, 57 N. Y. Supp. 771, it was held that recreation pier attendants on piers open only from May to November may be removed, and that the statute requiring the statement of reasons for such removal had no application. The court very pertinently said that the test is whether the dismissal was because of the fact that the services of an employé were no longer needed, as distinguished from a case of a removal to make way for another.

We are unable to reach any other conclusion, so far as the relator Albert Schoenwald is concerned, than that his appointment was for the season of canal navigation, and that his employment at the end of each season was legally terminated, and therefore he has no standing to compel his reinstatement to his former position.

[3] The case of the relator Barney Denner is somewhat different from that of Schoenwald. Denner was first employed in the year 1894 as a lock tender. For some four years he worked only during the season of navigation. From the year 1900 up to the time of his discharge he worked continuously, summer and winter, at lock 72. During the season of canal navigation, he received $45 per month, and was carried on the pay rolls of the department as a “lock tender.” For the rest of the time he received $10 per month, and was carried on the pay rolls as "watching guard lock.” The lock in question opened into the waters of Lake Erie, and it was necessary to have at least one person there to watch them all the time.

The relator testified that after navigation closed it was still necessary from time to time to lock boats through the lock, and to keep it free from rubbish, just the same as in summer. This work he also did in summer; but it is manifest that his duties were greater and more active in summer than in winter, and he had comparatively little to do when the canal was closed. Nevertheless it does appear that his employment was continuous and without break, and he was never formally discharged from service. The only difference

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seems to have been that on the pay rolls in summer he was called a "lock tender,” and after the canal was closed his work was designated as "watching guard lock," with duties very much the same, but with less pay because of less work.

The difference in the amount of compensation, although a circumstance to be given its due consideration, is not necessarily controlling. Neither is the name given the incumbent. The test is, it seems to us, Were the duties performed of the same general character, although the labor was less in amount, and although the particular acts to be done might be only occasional while navigation was closed, although contant during the summer months? To illustrate : In the summer months the passage of boats through the lock is constant, and many a day. After navigation closes the passage of boats is only occasional, and yet, so far as the evidence in this case is concerned, a man is required at the locks both summer and winter to operate the locks, and to keep the feed free from rubbish.

There does not appear to have been any formal discharge of the relator as lock tender and re-engagement of him as watchman. So far as appears, he continued right along in the service of the state without anything being said on the subject. We are of the opinion that, when the relator's services were discontinued in the spring of 1910, he was still within the employ of the state, and entitled to the benefit of formal charges and a hearing before dismissal from his position. His services are not claimed to have been discontinued because of lack of work or lack of funds.

We think the relator Denner entitled to be reinstated to his position as lock tender. In making this disposition of the case, we feel that we are but carrying out the provisions and purposes of the statute for the benefit of veterans of the late Civil War.

It is, however, contended that this court, at Special Term, cannot grant a final order in this case, but that all it has the authority to do is to grant a new trial of the issues framed upon which the case was tried in the first instance. The testimony returned presents no disputed questions of fact. It is, in our opinion, simply a question of law whether, on the undisputed evidence, the relator is entitled to the relief asked for or not. We can see no advantage or necessity of remitting the case again for trial before a jury, and can discover nothing in the cases cited which requires that action. We shall therefore dispose of all the issues at this time, as follows:

In the Schoenwald case, the proceedings are dismissed, with costs. In the Denner case, let the peremptory writ asked for be issued, with costs of the proceeding.

PECK V. KNAPP et al.

(Supreme Court, Equity Term, Cayuga County. July 30, 1912.) 1. PARTNERSHIP ($ 244*)-DISSOLUTION-DUTY OF SURVIVING PARTNERS.

On a dissolution of a firm by the death of one of the partners, the surviving partners are charged with the active duty of liquidatiog the old firm's affairs with reasonable diligence, in order that the deceased partner's interest may be ascertained, conserved, and paid over to his personal representatives.

(Ed. Note.-For other cases, see Partnership, Cent. Dig. § 511; Dec.

Dig. 244.*] 2. PARTNERSHIP ($ 301*)—DISSOLUTION-DEATH OF PARTNER--ACCOUNTING

VALUE OF DECEASED PARTNER'S INTEREST.

Plaintiff's deceased husband had owned a one-fourth interest in a partnership engaged in a publishing business, which was dissolved by his death in October, 1908. The business had been very successful, and in November following the surviving partners offered plaintiff, who was her husband's executrix and sole beneficiary, $15,000 for her husband's interest in the business, including real estate. This offer was declined, and no further steps taken to liquidate the business until the summer of 1909, when the surviving partners were offered $100.000 for the business, which they declined, saying that their interests as surviving partners were not for sale, and as a result of their inaction they lost the benefit of a sale at that price. Held, that plaintiff was entitled to an accounting, and to recover the value of her interest, figured on a basis of $100,000 for the entire business.

(Ed. Note.-For other cases, see Partnership, Cent. Dig. 8 698; Dec.

Dig. $ 301.*] 3. PARTNERSHIP ($ 301*)—DISSOLUTION-SALE OF ASSETS.

Where, after the dissolution of a firm by the death of one of the partners, an offer of $100,000 was made for the business, which the surviving partners promptly declined, and in which they manifested no interest, they could not successfully claim in a proceeding for an accounting that such offer should not be regarded as the value of the property, because the names of the proposed purchasers were not then disclosed.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. $ 698; Dec.

Dig. $ 301.*] 4. PARTNERSHIP (8 255*)-LIQUIDATION-SERVICES OF SURVIVING PARTNERS.

While in general surviving partners are not entitled to compensation for their services in liquidating the business of the firm, yet where, pending liquidation, it is necessary that the business be carried on in order to avoid great loss and to preserve a valuable good will, and it was the expectation of the personal representative of the deceased partner that the business would be conducted until an adjustment could be reached or the business advantageously sold, the surviving partners would be allowed compensation for their services so rendered, payable out of profits, during a reasonable time prior to securing an advantageous offer for a sale of the assets.

[Ed. Note.—For other cases, see Partnership, Cent. Dig. $8 552–561 ; Dec. Dig. 8 255.*)

Action by Mary F. Peck, as executrix of Henry D. Peck, deceased, against Horace J. Knapp and others, for a partnership accounting. Judgment for plaintiff.

Underwood, Storke, Seward & Elder, for plaintiff.

Turner & Kerr (Hull Greenfield, of counsel), for defendants. For other cases see same topic & NUMBER in Pec. & Am. Digs. 1907 to date, & Rep'r Indoxes

SUTHERLAND, J. The controlling facts in this controversy may be briefly stated. Henry D. Peck, the plaintiff's husband, died October 1, 1908, owning a one-fourth interest in the partnership of Knapp, Peck & Thompson, publishers of the Auburn Daily Advertiser and Auburn Journal, and owners of the job printing business connected therewith and the real estate on Genesee street in Auburn where the business was conducted. The newspaper and job printing business had been carried on continuously by that firm and their predecessors since 1849, and was in fine condition and the good will of the business was of much value. The profits had been large, and, with competent management, a continuance of business prosperity was well assured.

Since the death of Henry D. Peck, the business has been carried on by the three defendants, who are the surviving partners. In November, 1908, the defendants offered the plaintiff, who is the executrix of her husband's will and sole devisee and beneficiary thereunder, $15,000 for her husband's interest in the business, including the real estate. This offer the plaintiff declined to accept, stating that she believed that interest to be worth much more; and, through her attorneys, she requested a full statement of the condition of the business, in order that she might be properly advised as to what course to pursue. There was long delay in obtaining a full and satisfactory statement of the condition of the business. It is not necessary to determine whether that delay was unreasonable, because the case is to be disposed of upon other grounds.

In the summer of 1909, some gentlemen of financial responsibility authorized Paul R. Clark, the postmaster of Auburn and a member of the bar of that city, to open negotiations for the purchase of the entire plant and business for $100,000. Mr. Clark conferred with William H. Seward, Jr., on the subject, Mr. Seward being a member of the firm of attorneys who represented the plaintiff, and Mr. Seward had two interviews with Mr. Knapp, one of the defendants, in the first of which he told Mr. Knapp that he thought he could obtain a purchaser for the plant and business for $100,000, and asked Mr. Knapp if the three survivors would give an option on their interests on that basis, and Mr. Knapp refused, saying that their interests were not for sale. Mr. Seward testifies that in that connection he called Mr. Knapp's attention to the fact that the surviving partners had only offered plaintiff $15,000 for her quarter, and refused to take $25,000 apiece for their respective interests, to which Mr. Knapp replied: "Our shares are worth more than hers, because we are alive." Mr. Seward then stated that Mrs. Peck was just as much interested in the good will of the business as the surviving partners and entitled to whatever it was worth ; but Mr. Knapp said she was not. In the second interview, which occurred September 22, 1909, Mr. Seward told Mr. Knapp that he was authorized to and did offer $100,000 for the entire property and business as it stood October 1, 1908, when Henry D. Peck died, the unpaid accounts to be adjusted as of that date. This offer was declined, Mr. Knapp again stating that the interests of the surviving partners were not for sale. In written correspondence, also, between Mr. Seward and the defendants, the offer was called to their

attention, and the defendants replied that the interests of the surviving partners "are not for sale."

Mr. Seward declined to give the name of the proposed purchasers to Mr. Knapp, stating that they did not care to be known unless their offer was accepted. Later the defendants obtained legal counsel, who communicated with Mr. Seward's firm, and the negotiations for the purchase at $100,000 were reopened between Mr. Seward and Mr. Clark, and an attempt was made by Mr. Seward to obtain from the three surviving partners an option, running to Mrs. Peck, individually and as executrix, to purchase the three interests of the surviving partners for $75,000. This option they declined to sign, their counsel stating they did not care to give options to Mrs. Peck, as she was only an agent for others, with whom they preferred to deal directly, and also stating that the defendants and their counsel understood that the proposition to buy for $100,000 did not cover any of the unpaid accounts; and the defendants virtually offered to sell their interests on the basis of $100,000, reserving the accounts, which offer was declined, as the understanding had all along been between Mr. Clark and Mr. Seward that the proposition to purchase for $100,000 included the outstanding accounts, which amounted to a large sum and would serve as a tie binding the old customers to the new firm, and thereupon the negotiations for the sale to persons represented by Mr. Clark came to an end.

[1,2] There was much correspondence between the parties and their attorneys, which it is not necessary to review further. The facts stand out in bold relief that the surviving partners, although they were charged by the law with the active duty of proceeding with reasonable diligence to a liquidation of the business of the old firm, in order that the plaintiff's interest might be fully conserved and paid over to her, did nothing upon their own initiative toward that end, except to offer her $15,000 for her interest. They declined a bona fide offer of $100,000 for the firm assets, but took no steps toward finding a purchaser for a greater amount, and did not offer to the plaintiff her proportionate equivalent for the offer which they thus refused.

As a result of their inaction and refusal to consider favorably the proposition made through Mr. Seward, the plaintiff has lost the benefit which would have accrued to her through such a sale at $100,000. It is very doubtful if the plant could now be sold for that amount. Damage to plaintiff is thus directly attributable to the failure of the defendants to perform their duty as liquidating trustees under the law; and for the breach of that duty and the consequent loss to this plaintiff the defendants are liable. This action was commenced in April, 1910. In the fall of 1911, when the case had been placed upon the calendar for trial, defendants offered plaintiff $20,000 for her interest, in addition to about $2,300 which she had withdrawn from time to time; defendants retaining all other profits earned during the three years succeeding the death of plaintiff's husband. This offer was declined.

[3] The plaintiff and her counsel are now criticised because the name of the proposed purchaser was not revealed to the defendants;

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