and 90 New York State Reporter. such effect should be given to the law. I am of opinion that the legislative intent is clear that this act should apply to banks then in a state of liquidation. It is sufficient here to hold that this legislation is constitutional and valid, at least as against the stockholders. The only allegation of the complaint with reference to the defendants being stockholders is that they were stockholders within two years before the commencement of this action, and it is contended that this allegation is insufficient. The fact is distinctly alleged that they were stockholders, and, since they could not become stockholders after the dissolution of the bank, it is to be inferred that they were stockholders at the time of dissolution, or at some prior time, and within two years of the commencement of the action. There is no allegation that they transferred their stock, and I think it may, for the purposes of the demurrers, be presumed that they continued such stockholders down to the time of dissolution. Castner v. Duryea, 16 App. Div. 249, 44 N. Y. Supp. 708. The allegations of the complaint on that subject are informal and indefinite, but, as was held in Marie v. Garrison, 83 N. Y. 23, "it is not sufficient that the facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that the material facts are only argumentatively averred," to justify sustaining a demurrer. All of the demurrers present the objection that it appears on the face of the complaint that it fails to state facts sufficient to constitute a cause of action. That clearly presents all of the questions, and it was not necessary to demur on the ground that the plaintiffs have not a legal capacity to sue. Ward v. Petrie, 157 N. Y. 301, 51 N. E. 1002. The complaint shows that the assets are insufficient to pay the debts for which the stockholders are liable. These facts authorize the commencement of the action, without waiting until all of the assets shall have been converted into money, and the amount of the deficiency thus definitely ascertained. The statute of limitations would ordinarily run before that time, unless the assets should be sacrificed by a forced sale, which might be prejudicial to both the stockholders and creditors. The court, after determining who are the stockholders against whom the liability may be enforced, will, in awarding final judgment, protect the stockholders against paying in more than may appear to be reasonably necessary to meet the deficiency for which they are liable, and then, should there be a surplus, they will be entitled to its return pro rata. In re Reciprocity Bank, 17 How. Prac. 323, 22 N. Y. 9; In re Hollister Bank, 23 N. Y. 508; Walton v. Coe, 110 N. Y. 109, 17 N. E. 676; Hirshfeld v. Bopp, supra. The demurrers are overruled, with leave to the demurring defendants to answer within 20 days on payment of the costs of the de murrers. TYGART v. WILSON et al. (Supreme Court, Appellate Division, Third Department. March 8, 1899.) 1. PARTNERSHIP-ACCOUNTING-ASSETS-WHAT CONSTITUTES. After one of the members of a firm had announced his intention to retire by a certain time, and that thereafter he would no longer be responsible for the rent of premises leased by the firm, his co-partners openly negotiated for a lease with the intention of continuing business, and, after the dissolution, made a lease thereof. In the meantime the retiring partner applied to the landlord to ascertain on what terms he could obtain a lease should his co-partners not take the premises. Held, that the renewal lease could not be valued as assets on the accounting. 2. SAME-ENTRIES IN BOOKS BY MISTAKE. On an accounting it was error to charge partners with an item on the books, entered by mistake, which neither they nor the firm had received, lost, or paid out. 3. SAME-BILLS-DUPLICATE PAYMENT BY MISTAKE. A duplicate payment of a bill made by mistake in the regular course of business by one partner cannot be charged to him on an accounting unless he was grossly negligent. Appeal from judgment on report of referee. Action by Charles Tygart against Warren R. Wilson and another for dissolution of co-partnership and for an accounting. From a judgment entered on the report of a referee, defendants appeal. versed, referee discharged, and new trial granted. Re On the 1st day of December, 1892, the plaintiff entered into articles of copartnership with defendants under the firm name of Wilson, Sheffer & Co. in the grain and milling business in the city of Albany. By the terms of that agreement the co-partnership was to commence on the 1st day of December, 1892, and to continue until terminated by mutual consent, or either might terminate the co-partnership at the end of any fiscal year upon giving at least three months' written notice of his intention so to do. Such co-partnership, on the 7th day of December, 1892, rented of one George W. Coonley certain buildings, with engine and machinery suitable for milling purposes, situated in the city of Albany, for a term of four years and three months from the 1st day of February, 1893. Prior to or about the 1st day of April, 1897, the plaintiff orally notified the defendants that he was going to withdraw from the firm on the 1st day of May; but subsequently, on or about the 1st day of May, gave them a written notice that he would terminate such co-partnership on the 1st day of December, 1897. The plaintiff thereafter, and by a complaint verified December 3, 1897, commenced this action for a dissolution of the co-partnership, and for an accounting, and applied for the appointment of a receiver pending the action. A temporary receiver was appointed, the action was referred to a referee, and from the judgment entered upon the report of the referee this appeal is taken. The referee reported that the defendants owed to the firm of Wilson, Sheffer & Co. the sum of $453.64, and that such sum should be paid to the receiver. Such sum is made up of several items which are found in separate findings of fact, some of which will be more particularly adverted to in the opinion herein. The referee also found as a conclusion of law "that the lease of the mill property representing the good will of the business obtained by the defendants in their own name should be taken and sold by the receiver for the benefit of the firm of Wilson, Sheffer & Co." He also found "that the plaintiff's costs of this suit should be paid by the firm of Wilson, Sheffer & Co." Argued before PARKER, P. J., and LANDON, HERRICK, MERWIN, and PUTNAM, JJ. and 90 New York State Reporter. Frederick E. Wadhams, for appellants. ent. HERRICK, J. The relation of partners to each other is that of trustees and agents, and they are required to act with the utmost good faith in their dealings with each other. Neither one can be permitted to surreptitiously take advantage of the other, and every advantage that he thus obtains in affairs pertaining to the business inures to the benefit of all the partners. Accordingly it has been held that one member of a co-partnership cannot, during its existence, without the knowledge of his co-partners, take a renewal of a lease for his own benefit. Mitchell v. Reed, 61 N. Y. 123; Struthers v. Pearce, 51 N. Y. 357. This rule is so well established that there is no occasion for the multiplication of authorities to verify it. "Those who are in possession of lands under a lease have an interest therein beyond the subsisting term, usually called the 'tenant's right of renewal.' Between the landlord and tenant this interest cannot strictly be denominated a right or estate, but is merely a hope or expectation, there being, in the absence of contract, no way, legal or equitable, of compelling a renewal. But, as between third persons, the law recognizes this interest as a valuable property right, and the renewal as a reasonable expectancy of the tenants in possession." Robinson v. Jewett, 116 N. Y. 40, 22 N. E. 224, and cases cited. The superior opportunity or chance that a tenant has to renew his lease that intangible thing known as a "tenant's right"-is a thing of value, and, if that tenant is a co-partnership, it is accounted one of the assets of the co-partnership, which no one member has a right clandestinely to appropriate to himself. None of the cases cited, however, or any which I have been able to discover, have gone the length of holding that under no circumstances can a member or members of a co-partnership take a lease of the premises occupied by their firm for his or their own benefit. It would be unreasonable to hold that, after the dissolution of a co-partnership, or the fixing of a time when it is to be dissolved, neither member of such copartnership should be at liberty to lease the premises theretofore occupied by them for his own benefit, but could only take it for the joint benefit of those who were no longer to continue in the business. The sum and substance of the principle is that a partner shall not secretly or clandestinely take advantage of his position to better himself at the expense of his associates; that he shall not, as some of the cases express it, "go behind the back" of his co-partner to obtain that, solely for himself, to which all of his associates are equally entitled. There must, however, be circumstances under which a member of a firm dissolved, or about to be dissolved, can make arrangements for continuing the business where it had been previously carried on, and for that purpose acquire a lease of such property. This is recognized, indirectly it is true, but still recognized, in the opinion of the court in the case of Struthers v. Pearce, supra; the court saying: "The material fact is found by the judge that the lease in question was taken by the defendants during the existence and continuance of the partnership for their individual benefit, and to the exclusion of all interest therein by the plaintiff; and that this was done secretly, and without notice to him. It also appears by findings that the term of the co-partnership was not for a fixed and definite period, but was to continue during the pleasure of the parties; and it is not found that any agreement had been made, or any act had been done, or notice given, by either party, by which the time for its dissolution had been ascertained, fixed, or determined, nor that there had been any expression or indication of the will or pleasure of either party by which the relation between them had been discontinued when the lease was obtained. We must, therefore, assume as a fact that the partnership was in existence, and that no definite time had been fixed for its dissolution at that time, or, in other words, that it was still a continuing partnership of undetermined duration'; and on that assumption the judge was clearly right in declaring as his conclusion of law that the lease was partnership property. The rule or principle is well settled in such a case, as stated in the clear, terse, and expressive language of the counsel of the appellants when he says, 'It is true that, where no definite time is fixed for dissolution, though the firm may be dissolved at any time on notice, yet until such notice is given the partnership is deemed to continue indefinitely, and the term of a lease so renewed is therefore deemed to commence within the term of the partnership, and becomes a partnership asset.'" In the case before us, the partnership, like that in Struthers v. Pearce, was not fixed and definite, but it was to continue during the pleasure of the parties. Unlike that case, however, notice had been given by the plaintiff of the termination of such partnership at a fixed time, and at the time of the negotiations the partnership existing between the parties was not "a continuing partnership of undetermined duration." In this case the lease would expire on the 1st of May. Prior to or about the 1st of April the plaintiff notified the landlord that the co-partnership existing between him and the defendants would terminate on May 1st, that he would withdraw from the firm on that date, and that he would not be responsible for the rent of the premises after that time. He also, before the 1st of May, notified the defendants that he would retire from the co-partnership May 1st. Ascertaining or recalling the fact, however, that he could only do so, under the articles of co-partnership, at the end of the fiscal year, and by giving three months' written notice, he, on the 1st day of May, gave them written notice that he would withdraw from the co-partnership on the 30th day of November or the 1st of December, and he again, on November 19th, notified the landlord that the co-partnership contract would expire November 30th; that he would then retire from the firm, and he would not be responsible for the rent after that time. After giving these notices, I do not see how it can be claimed that he could expect any renewal of the lease for his benefit. It seems to me that they constituted an abandonment of the so-called "tenant's right of renewal." In this case the lease was not executed until December 27th, after this action had been commenced, and after the motion for the appointment of a receiver had been argued. It is claimed, however, that, while the lease was not executed until after the dissolution of the co-partnership, yet the agreement for the lease was made during the existence of the co-partnership, and that, therefore, it must be held as taken for the benefit of all the former co-partners. I think and 90 New York State Reporter. the evidence justifies the holding that the execution of the lease on the 27th of December was simply the culmination of negotiations had, and the consummation of an agreement practically made, before December 1st; but it does not necessarily follow from that that the lease should be held as taken for the benefit of all the former copartners. Of course, negotiating for a lease and agreeing upon its terms during the existence of a co-partnership, although it is not to be actually executed until after the dissolution of the co-partnership, is open to the same objection as the actual procurement of the lease during the continuance of the co-partnership. The question in each is whether there has been any breach of the duty that one copartner owes to the others,-whether an undue advantage has been taken of the co-partnership relations. The circumstances under which the negotiations for the lease were conducted must determine in each case whether there has been any breach of co-partnership duty, and whether the acts of the co-partner negotiating for his own benefit must, because of such breach, inure to the benefit of all. No hard and fast rule can be adopted to govern every case, no matter what the circumstances are. In this case it was after the notices to the landlord and to the defendants that the co-partnership would terminate at a specified time, and that the plaintiff would not be responsible for the rent beyond that time, were given, that negotiations began between the defendants and the landlord for the renewal of the lease. There appears to have been nothing secret or clandestine about it. It was not a case where one partner obtained a renewal of the lease behind the back of the others before the dissolution of the co-partnership, or before it had been agreed to be dissolved, whereby the other partner was forced out of the business, but after the plaintiff had announced his intention to retire from the firm, and after he had announced that after the time fixed by him he would no longer be responsible for any portion of the rent of such premises. By such acts and declarations upon his part it seems to me, as before stated, that he waived any part or interest in what has been referred to as the "tenant's right of renewal." The knowledge that the defendants were negotiating for a renewal of the lease was not withheld from him, but was known to him, for he applied to the landlord to ascertain upon what terms he could obtain a lease of said premises in the event of the defendants not taking them. The plaintiff raised no objection to the defendants leasing such premises, except that they should not do it during the continuance of the co-partnership. The case is not like that of Clogg v. Edmondson, 8 De Gex, M. & G. 787, cited in Mitchell v. Reed, 61 N. Y. 138, where two partners in a co-partnership about to be dissolved objected to the other three taking a renewal of the lease, claiming that such renewal should be for the benefit of all. Here there was no claim upon the part of the plaintiff that he should have any part or benefit in the new lease; simply an application for it for himself in the event of the defendants not taking it. Under the circumstances in this case it does not seem to me that there has been any breach of trust on the part of the defendants, or violation of the fiduciary relation existing between themselves and the plaintiff, or |