134 Misc. 449 | N.Y. Sup. Ct. | 1929
The plaintiff seeks in this action to set aside, cancel and declare fraudulent and void two deeds of conveyance to premises No. 338 East Fifty-sixth street in the borough of Manhattan, city of New York, which premises he claims were bought by himself and the defendant Brenner as copartners. He further seeks the dissolution, accounting and winding up of the partnership between himself and the defendant Brenner.
The theory of the complaint as indicated by the pleadings and by the testimony adduced on the trial on behalf of the plaintiff is that the plaintiff and the defendant Brenner took title to 338 East Fifty-sixth street as partners and that Brenner induced the plaintiff to join in the sale of the property to the defendant Sommer by verbal attacks and importunities which the plaintiff was unable to resist because of the condition of his health, and that although the defendant Brenner had urged that he wanted to get rid of the property, yet he, on the very same day that the plaintiff and defendant transferred their property to the defendant Sommer, received back from the defendant Sommer, unknown to plaintiff, a deed to the property, both deeds being recorded simultaneously. The defendant denied the partnership and claimed that they were tenants in common. The defendant conceded that in the transaction wherein the plaintiff and defendant Brenner conveyed the property to the defendant Sommer, who thereafter conveyed it to the defendant Brenner, the said defendant Sommer was acting at all times for and on behalf of the defendant Brenner.
While a joint purchase of land does not make the owners partners (Partnership Law, § 11, subd. 2; Real Prop. Law, § 66, and Albert v. Schrank, 203 App. Div. 149), nevertheless it is well-settled law that a partnership may be created by an agreement relating to a single transaction in the sale or purchase of land; and it has been repeatedly held that a partnership for dealing in land is created where the lands were bought jointly for speculation, each party to share equally in the profits. A partnership always implies a joint share in the profits and losses of the undertaking. While
The defendants’ brief quotes the greater part of the opinion, but omits the very important statement of facts, which shows that the parties derived their respective titles through different instruments and at different times, and the case, therefore, differs from the case at bar in the very matter which is the test of fiduciary relationships between cotenants; for in that case plaintiff and the husband of the defendant took title to the real property in question and the defendant acquired her title to a one-half interest by devise upon her husband’s death.
Another distinction is that the defendant in the Klein case did not join in the deed, which was merely a conveyance of the plaintiff’s one-half interest, and, therefore, the plaintiff was not
It is not necessary to go so far as Freeman in his work on Cotenancy and Partitions, to hold, as he does (§§ 150 and 151), that the cotenancy relation is always one of mutual trust. However, the concurring opinion of Judge Gaynor in Dolan v. Cummings (116 App. Div. 787; affd., 193 N. Y. 638), in which he reviews the conflict of authority on the subject, lends considerable support to this view.
The instant controversy presents an even stronger example of overreaching by the defendant than the Dolan case. Considering further that the affirmative proof by plaintiff that defendant ante litem motam admitted the existence of a partnership, has only been partly explained away, I find that there has been a breach of a fiduciary duty by defendant, which entitles plaintiff to judgment.
Submit findings and judgment on notice.