188 A.D. 283 | N.Y. App. Div. | 1919
Lead Opinion
• The evidence amply sustains the findings of the learned justice at Special Term, that the plaintiff and defendant had mutually agreed that if the plaintiff would discontinue the actions for a divorce and for a dissolution of the partnership
In so far, however, as the judgment decrees that the plaintiff has a one-half interest in the booking business conducted by the defendant and requires him to account to the plaintiff every six months for the profits, increase and income hereafter arising from said business so long as the business shall continue, it .cannot be sustained. First. Such an arrangement was not alleged in the complaint to have been a part of the settlement agreement. Second. It was not clearly and distinctly proved to have been a part of the agreement made between the parties. Specific performance of an oral agreement can only be decreed where the same is established with definiteness and certainty. Third. Specific performance of a contract to enter into partnership, or to compel the performance of a contract of partnership .already in existence, where no definite term is fixed, cannot be decreed. Such a partnership would be at will and dissoluble at the pleasure of any of the parties, and such a dissolution would terminate the contract and make the decree an empty form. (Wilcox v. Williams, 92 Hun, 250, 252; Pom. Spec. Perf. § 290.) Where the contract is for a definite term, relief may be granted to the extent of compelling the execution of the partnership
The judgment should be modified by striking therefrom the provisions as to the accounting for the profits of the booking business, and as so modified affirmed, with costs- to the respondent.
Clarke, P. J., Smith and Philbin, JJ., concurred; Dowling, J., dissented.
Dissenting Opinion
I dissent and vote to reverse the judgment and dismiss the complaint, on the ground that the agreement sued on has not been proven.
Judgment modified as directed in opinion and as modified affirmed, with costs to respondent. Order to be settled on notice.