Frank v. Kahn

250 A.D. 781 | N.Y. App. Div. | 1937

Action to recover moneys alleged to be due under an agreement for the dissolution of a partnership. Judgment modified so as to provide that plaintiff be allowed his intestate’s share of the profits for the years 1933 and 1934; that the profits for the year 1934 be reduced by the sum of $5,500, representing the Ley-Fred investment, and that plaintiff be allowed the sum of $41.19, his intestate’s share of the interest received before that investment became worthless. As so modified, the judgment is unanimously affirmed, without costs. As we read the agreement, Buchman’s rights depended upon the profits realized each year, and any payments made to him, in a particular year in excess of ten per cent of the net profits were voluntary and plaintiff was not obliged to repay same, as the contract contained no provision for repayment. (Babcock v. Swartwout, 145 App. Div. 203.) We are also of the opinion that in computing the net profits the loss sustained by defendant in the Ley-Fred investment should be deducted. The parties will agree on an order based on this interpretation of the agreement. Present- — -Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ.