wantonly excited him, or voluntarily or unnecessarily put himself in the way of the animal. Cases supra. In such a case the act of the plaintiff will be deemed to be the proximate cause of his injury. The conduct imputed to the plaintiff would not bring him within this exception to the rule, but, even if the evidence in that respect justified its submission to the jury, the learned trial judge committed no error in his charge. The presumption against the defendant could be met only by credible evidence sufficiently strong to overcome the prima facie case, and this, in effett, is what the learned trial judge said to the jury. The allegations of contributory negligence which appear in the complaint. were wholly unnecessary. They may be disregarded and treated as surplusage. The case was fairly submitted to the jury. The verdict is sustained, and should not be disturbed. Judgment affirmed, with costs. All concur. (50 Misc. Rep. 617) FRIEDMAN et al. v. SCHREIBER. (Supreme Court, Appellate Term. March 26, 1906.) REPLEVIN-PARTIES-RIGHT TO INTERVENE. Under Code Civ. Proc. § 452, providing that the court may determine the controversy as between the parties before it where it can do so without prejudice to the right of others, but, where a complete determination thereof cannot be had without the presence of others, the court must direct them to be brought in, and where a person not a party to the action has an interest in the subject thereof, and makes application to the court to be made a party, it must direct him to be brought in, one who, in an action to replevin a machine, shows that plaintiff's delivered it to him to make repairs, and that after making repairs of a certain value he turned the machine over to defendant, with instructions to finish the repairs, and deliver the machines to plaintiff's on payment of the entire bill for repairs, for which such person claims a lien, disregarding which claim plaintiffs brought the action, shows a right to be made a party defendant. Appeal from City Court of New York, Special Term. Action by Harry P. Friedman and another against William Schreiber. From an order denying the application of defendant and another that such other person be brought in as a defendant, defendant appeals. Reversed. Argued before SCOTT, P. J., and O'GORMAN and NEWBURGER, JJ. Jones & McCormick, for appellant. O'GORMAN, J. This is an appeal from an order denying the joint application of the defendant and one Sanford that he be brought in as a party defendant. It appears from the moving papers that the plaintiffs delivered to Sanford their automobile for the purpose of having him make certain repairs thereon; that Sanford thereupon made repairs of the reasonable value of $127.30; that he then turned over the car to the defendant, with instructions to finish the repairs and deliver the automobile to the plaintiffs upon payment of the entire bill for repairs and labor, amounting in all to $202.30, for which Sanford claims a lien; and 132 New York State Reporter that the plaintiffs disregarded the claim, and replevied the machine in this action, making Schreiber only a party defendant. Sanford, asserting a lien upon the car for his work and labor, has an interest which may be seriously prejudiced, if not destroyed, unless he may intervene in this action. We think he brings himself clearly within section 452 of the Code, and in our opinion it was error to deny his application. Rosenberg v. Solomon, 144 N. Y. 92, 38 N. E. 982; Bauer v. Dewey, 166 N. Y. 402, 60 N. E. 30; Uhlfelder v. Tamsen, 15 App. Div. 436, 44 N. Y. Supp. 484. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide the event. All concur. (50 Misc. Rep. 156) SEDDON et al. v. TAGLIABUE. (Supreme Court, Appellate Term. March 26, 1906.) TRIAL-REQUEST TO DIRECT VERDICT-EFFECT-SUBMISSION TO JURY. A previous request to direct a verdict does not preclude a party from requesting to have the case submitted to the jury. [Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, § 399.] Appeal from City Court of New York, Trial Term. Action by Louis É. Seddon and another against Charles J. Tagliabue. Judgment for defendant, and plaintiffs appeal. Reversed. Argued before SCOTT, P. J., and O'GORMAN and NEWBURGER, JJ. Einstein, Townsend & Guiterman (Jos. J. Cunningham, of counsel), for appellants. Kenneson, Emily & Rubino (Thaddeus D. Kenneson, of counsel), for respondent O'GORMAN, J. The plaintiffs are fire adjusters, and sue to recover for breach of contract. The plaintiffs claim that they were employed by the defendant to adjust a fire loss upon an agreed compensation, that they accepted the employment, and that upon the following day the defendant attempted to cancel the agreement. The material features of the plaintiffs' testimony are contradicted, but, giving the plaintiffs the benefit of the most favorable inferences deducible from the evidence, the case presented a clear question of fact, which should have been submitted to the jury. This was the impression of the learned trial justice at the close of the trial, but, as each of the parties moved for a direction, the court held that the plaintiffs waived their right to go to the jury, notwithstanding their request so to do, on the intimation of the trial justice that he would direct a verdict for the defendant. This was error. It is well settled that a previous request to direct a verdict does not preclude a party from requesting to have the case submitted to the jury. Second Nat. Bank v. Weston, 161 N. Y. 528, 55 N. E. 1080, 76 Am. St. Rep. 283. As said in the case cited: "No question was raised by the court or by the counsel for the defendants as to what particular question of fact the plaintiff desired to have the jury pass upon, and the request as made was to have them pass upon the whole case. Under such circumstances, it was not necessary to name a particular question of fact any more than when a motion to nonsuit is granted." Judgment reversed, and a new trial granted, with costs to the appellants to abide the event. All concur. (112 App. Div. 845) BRADY v. POWERS et al. (Supreme Court, Appellate Division First Department. April 6, 1906.) 1. PARTNERSHIP-CREATION-CONTRACT-NONCOMPLIANCE-WAIVER. Partners in a firm engaged in giving indoor bicycle races entered into an agreement with a third person whereby he should become a partner in consideration of his paying $2,000, and whereby he should have a onefourth interest in the venture. The third person did not pay the $2,000 to the partnership, but it was subtracted from his share of the proceeds of the next meet after the agreement. Held, that the third person's failure to pay the money was waived by the partners. 2. SAME-ACTIONS FOR DISSOLUTION-DEFENSES-EVIDENCE. Evidence in a suit for the dissolution of a partnership engaged in the giving of bicycle races examined, and held to support a finding that the money received by plaintiff in consideration of his settlement of a prior suit against the defendants and. another, in which he asked for an accounting for his share in a firm engaged in giving pugilistic exhibitions, was not received in settlement of his claim in the profits of the firm engaged in giving bicycle races, and the receipt of the money did not constitute a bar to the suit. 3. SAME-PARTNERSHIP AT WILL-DISSOLUTION. The sole business of a partnership consisted in giving an annual bicycle race. It had no working capital and no assets save the right to lease a place for the holding of the race. The partners entered into the partnership under an oral agreement. Held that, in order to effect a dissolution of the partnership, which was one at will, there must be either a mutual agreement to dissolve, or notice by a partner desiring a dissolution to his copartner of his election to terminate the partnership. 4. SAME. The bringing of an action for the dissolution of a partnership and for an accounting does not constitute an election on the part of plaintiff to exercise his right to dissolve the partnership, which was one at will, where in his complaint he expressly considered the partnership as existing. [Ed. Note. For cases in point, see vol. 38, Cent. Dig. Partnership, § 768.] 5. SAME. In a suit for the dissolution of a partnership and for an accounting, defendants answered that there was no "partnership now existing between the plaintiff and the defendants, and that every and all business relations heretofore existing have terminated." Held, that the answer constituted a notice that defendants desired to exercise their right to dissolve the partnership. 6. SAME. The sole business of a partnership consisted in giving an annual bicycle race. It had no assets save the right to lease a place for the holding of the race. The agreement for the partnership was oral, and it continued during the will of the partners. There was nothing to show that two of the partners leased the place for the races before service on their copartner of their election to terminate the partnership. Held, that the fact that the partners continued to give the races in the same place did not prevent their terminating the partnership, and they were not required to account to the copartner for the profits made from the business after the service of the notice of dissolution. and 132 New York State Reporter 7. SAME-DIVISION OF PROFITS. The business of a partnership consisted in giving bicycle races. It had no assets save the right to lease a place for the holding of the race. It did not appear that any amount of the proceeds of the race of one year was carried over as capital for the next year. Privileges were sold, and from the moneys thus received and on the credit of the enterprise the preliminary arrangements for each annual race were met, and the box receipts were the source to which all looked for compensation. The agreement for the partnership was oral, and the same might be terminated at will. After the meet for 1900, two of the partners served a notice of dissolution on their copartner. The partners continued the business for the years 1901 and 1902. Held, that the copartner was not entitled to his share of the profits made during the years 1901 and 1902; there being nothing to show that the proceeds of the race of 1900 were used for the business during the subsequent years. Action by William A. Brady against Patrick T. Powers and another. From an interlocutory judgment dissolving a partnership and ordering an accounting, and from an order confirming the report of a referee, and from a final judgment thereon, and from an order denying a motion for leave to file and serve nunc pro tunc amended and supplemental exceptions (94 N. Y. S. 259), defendants appeal. Modified. Argued before O'BRIEN, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ. James A. Allen, for appellants. Dittenhoefer, Gerber & James (David Gerber, of counsel), for respondents. CLARKE, J. This action was brought for the dissolution of a partnership and an accounting. The partnership related to the giving of bicycle exhibitions or races. In May, 1897, the plaintiff and the defendants entered into an oral partnership arrangement to give bicycle exhibitions, each of the four parties to receive one-fourth of the profits, and share the losses in the same proportion. At that time the exhibitions contemplated were "outdoor" exhibitions. In August, 1897, it was agreed that the plaintiff should have an interest in indoor racing. Prior to that, Powers, Kennedy, and Batchelder had been holding these indoor races, and the plaintiff asked to be allowed to come in. After some opposition and considerable discussion, it was agreed that Brady, in consideration of his paying $2,000, should have a 25 per cent. interest in indoor bicycle racing at Madison Square Garden. Brady did not pay this money to the partnership, but it was subtracted from his share of the proceeds of the next meet after the agreement. That fact establishes a waiver of any defense which his partners might have had of his claim to an interest in indoor racing on account of his failure to pay this money. Exhibitions were given in Madison Square Garden in 1897 and 1898. Settlements for these years had been had between the parties. No settlement having been had after the exhibitions of 1899 and 1900, this action was commenced on the 18th of January, 1901. The defendants denied the continued existence of the partnership. The learned justice who tried the case said in his opinion on granting the interlocutory judgment: "The partnership interest of the plaintiff up to a specified time is conceded. The acts of the parties satisfy me that the partnership was not dissolved, but was continued, and is still in existence." The case having been tried before the amendment to the Code which required separate findings of fact and conclusions of law, we have not had the assistance of such findings, and have been compelled to examine with minute care all of this voluminous record on this appeal; and, having done so, we find the conclusion that the partnership had not been dissolved up to the time of the commencement of the action fully supported by the evidence. As to the existence and continuance of the partnership relation to October, 1900, there is no longer any pretense of dispute. Powers, one of the defendants, testified that the termination of plaintiff's interest was in October, 1900 (the settlement of the Twentieth Century Athletic Club suit), and that he would have no objection to a judgment in favor of the plaintiff, and directing an accounting down to that time. Kennedy, the other defendant, testified that they had a general settlement in October, 1900, and everything ended then; so that there was no question but there was a partnership, created by oral agreement, without time limitation, under which indoor bicycle races were to be conducted at the Madison Square Garden in the city of New York, and that such races were so conducted in the winter of 1897, 1898, and 1899. The defendants claim, however, that before the race meeting in December, 1900, this partnership was terminated and all matters settled in October, 1900. If so, there should be no accounting after 1899. These men were all engaged in many and various ventures, sometimes together and often apart. They were in no sense general partners. They joined in special ventures. The plaintiff in the case at bar had brought suit against the Twentieth Century Athletic Club and Powers and Kennedy, claiming that he was a partner in that enterprise, and by injunction had tied up a considerable amount of money. That venture was for the purpose of giving pugilistic exhibitions, and was in no way connected with bicycling. That suit was discontinued, and plaintiff received $1,058. Defendants claim that the $1,058 represented moneys which plaintiff claimed to be due him growing out of bicycling matters, and that the payment thereof settled all of their affairs and terminated all of their arrangements. No release was executed or delivered; no writing passed. The plaintiff testifies that, for reasons advanced by a friend whose name did not appear in the case, he was induced to settle the Twentieth Century Athletic Club suit, and release the money, but said that defendants ought to pay him back cerain sums he had advanced; that he gave them a paper showing his claims against them. That paper reads: "Advanced P. T. Powers and J. C. Kennedy $600 to bring bicycle riders here last year. An accounting of last 6-day race which I have never received. $258 adv. Kennedy on his note, which I hold, to send Hawkins to Cala. $200 advanced Kennedy on his note last May before leaving for Europe." -But that that settlement was solely in regard to the Twentieth Century Club suit, in no way involved bicycling matters, except as to the sums advanced, and that the paper itself shows he was claiming an accounting of the last six-day race, which he had never received. There was evidence to sustain and require the Special Term's conclusion that "the settlement pleaded in bar has no bearing on the present issues, but related to transactions entirely foreign to the matters litigated." The testimony of plaintiff and Kennedy is in direct contra |