102 Misc. 2d 170 | N.Y. Sup. Ct. | 1979
OPINION OF THE COURT
The facts of this case illustrate all too well why parties should retain the services of legal counsel when they go into business for themselves.
During the latter part of 1977 while defendant was employed by plaintiff as a truckman, they discussed the prospect of opening a retail and wholesale produce business in a then vacant building at 99 Mill Road, Riverhead, New York, adjoining a building then leased by Mr. Hanlon. As a result of that conversation it was agreed that plaintiff would contact the owner of the building regarding the possibility of leasing the building. Negotiations proved successful and the building was rented. Early in February, 1978 both parties entered into an oral business agreement to open up a wholesale and retail produce outlet at the premises which included two buildings, a large refrigeration unit and packing facilities. The facility was to be named "Riverhead Food Terminal”.
As a result of their oral agreement plaintiff, a well-educated man with approximately 25 years’ experience in producing, selling and brokering agricultural produce primarily in eastern Suffolk County, assumed the responsibilities of (1) making the necessary alterations and improvements to convert the premises in which the terminal was to be housed into a suitable business premise, (2) acquiring all local and State government permits and licenses for operation of its business as well as the requisite insurance policies, and (3) controlling overall the internal operations of the business, including
The record reflects that on several occasions plaintiff tendered and defendant refused to accept a check in the amount of $4,273.75 in payment of produce that defendant supplied Riverhead Food Terminal. On each of these occasions the check was dishonored. On July 1, 1978, after personally borrowing funds plaintiff met with defendant at the Riverhead Food Terminal and personally tendered to defendant a certified check of the Riverhead Savings Bank in the amount of $4,273.75, which tendered check defendant refused to accept. Defendant thereupon informed plaintiff that he was taking over the business, an altercation ensued and defendant ejected plaintiff from the premises and threated him with bodily harm if he ever returned. Shortly thereafter plaintiff engaged legal counsel and returned with said counsel to the premises where his counsel tendered the certified check to defendant which defendant again refused to accept. Defendant thereupon stated to counsel if plaintiff returned to the premises he would suffer physical harm. Subsequently, counsel communicated with defendant’s attorney and again tendered the sum of $4,273.75 and demanded that plaintiff be permitted to share in the proceeds of the association. Said offer was refused.
Up to the present time, Riverhead Food Terminal has continuously operated as a business. Defendant has prevented plaintiff from entering upon the premises and has refused to comply with plaintiff’s demand that defendant render him a true and valid accounting of his interest in Riverhead Food Terminal. The record also reflects that at some time plaintiff broke into the premises and physically removed certain items of property.
Much is made of the contention whether this association was a partnership or a joint venture. A partnership is an association of two or more persons to place their money,
A joint venture, on the other hand, has been defined as a special combination of two or more persons where in some specific venture a profit is jointly sought without any actual partnership or corporate designation (32 NY Jur, Joint Adventure, § 1). The incidents of a joint adventure and the obligations of the members toward each other are in many respects so similar to those existing in a partnership that joint adventurers’ rights, duties, and liabilities are to be tested by rules closely analogous to and generally substantially the same as those which govern partnerships. It has been said that a joint venture is a limited partnership — not limited in a statutory sense as to liability, but as to scope and duration and thus one distinction between two forms of association is that a joint venture relates to a single transaction (though it may be considered a business to be continued over several years), while a partnership relates to a general business of a particular kind (32 NY Jur, Joint Adventure, § 3).
Where a partnership relation and interest are asserted, the element of a partnership must be shown but this is not required where only a joint venture is claimed. Insofar as the right to an accounting and concomitant relief is concerned, it is enough that the parties stand in a mutual and confidential relationship to each other and have a joint inter
Accordingly, in the interest of equitably and beneficially resolving this matter, the court sets this matter for a conference at my chambers at 152 West Hoffman Avenue, Lindenhurst, New York, on Thursday, December 20, 1979, at 3:00 P.M.
So ordered.