192 Misc. 53 | N.Y. Sup. Ct. | 1948
Official Referee. The premises at No. 903 Military Road, town of Tonawanda, Erie County, New York, consists of store building and living rooms. The store portion is fitted up and occupied for tavern and restaurant purposes and the license for such tavern and restaurant purposes is held by the defendant Helen V. Courtney. She is a housewife and the spouse of the plaintiff Thomas R. Courtney. Thomas R. Courtney is an auditor and public accountant who devotes the largest part of his professional occupational duties to the books and accounts of tavern owners. The defendant John Riordan is a member of the Buffalo Fire Department employed by the city of Buffalo and he is a brother of the defendant Helen V. Courtney. Prior to the commencement of this action and ever since the defendant Riordan has been occupying the living quarters in the premises at 903 Military Road. The plaintiff Thomas R. Courtney claims to be entitled to the possession of said premises under a lease which he at present holds covering the entire property at 903 Military Road. Originally the plaintiff endeavored to secure such possession from the defendant Riordan by a summary dispossess proceeding brought in the Justice’s Court; in such proceeding the defendant John Riordan made a claim of partnership in the tavern and restaurant business on the premises, on this account jurisdiction failed in the Justice’s Court. Subsequent to the discontinuance of such proceeding in the Justice’s Court the present action was brought in the Supreme Court by the' plaintiff. The relief sought in this action is the ejectment of the defendant Riordan from the premises and a judgment in favor of the plaintiff against such defendant for damages allegedly brought about by the defendant converting certain proceeds out of the business and/or an injunction restraining the defendant Riordan from interfering with the business and the premises. The defendant Riordan answered and by his answer made the defendant Helen Y. Courtney a party to this action and in such action claims to be.a partner in the business and to be entitled to possession of the living rooms and to an accounting by reason of such partnership from the plaintiff and from the defendant Helen Y. Courtney. By stipulation all of‘the parties hereto waived any right to a jury trial of any of the issues and agreed that the action be referred to an official referee of the Supreme Court to hear and determine. The trial of such action has proceeded before me for some time and the issues have finally been submitted for my decision.
There is now before the court to determine the legal status of the parties each to the other with reference to the business and premises involved ahd the type of judgment that is warranted on the proof taken before me as an official referee and as above summarized. ' Even though there has been found that the Courtneys, plaintiff and defendant, engaged in the relationship of partnership with the defendant Riordan, such partnership was founded on an illegal basis and cannot be used to establish any rights of the defendant Riordan as a partner. False information was given to the- State Liquor Authority by all the three parties hereto with their knowledge as to the interest of Riordan in the business. This falsity was for the purpose of inducing the -State Liquor Authority to issue the license to Helen V. Courtney, the defendant. It becomes necessary then to conclude that the defendant Riordan had no right to have had, and has no right as a partner in the business conducted at 903 Military Road, the premises in question. (Carmine v. Murphy, 285 N. Y. 413; Flegenheimer v. Brogan, 284 N. Y. 268;
Judgment may be had accordingly.