Osborn v. MacMillan
236 A.D. 688
N.Y. App. Div.
1931
Check Treatment

Interlocutory judgment modified by striking therefrom so much as leaves for determination upon the accounting the question whether the appellant made the best and fairest disposition of the lease, and as so modified, interlocutory judgment unanimously affirmed, in so far as appealed from, without costs. We are of opinion that in the absence of fraud, which is not claimed by plaintiff, plaintiff is bound by MacMillan’s disposal of the lease. We do not intend by this determination to eliminate plaintiff’s right to have determined the value of what was received for the lease, i. e., the stock. Lazansky, P. J., Kapper, Carswell and Davis, JJ., concur; Hagarty, J., concurs but is of opinion that the expense of both Neidlinger and MacMillan should be *689established by proof upon the accounting for the determination of the gross profit of the joint adventture.