273 A.D. 848 | N.Y. App. Div. | 1948
While we are in accord with substantially all the findings of fact embodied in the oral decision of the trial court, we are constrained to disagree with some of the conclusions of law in this case.
In our view of the matter it is unnecessary to decide whether or not the plaintiff became a partner of Martorella by reason of the assignment dated April 12, 1944.
We find that the plaintiff was not a member of the new partnership effective May 1, 1944, and formed by the defendants with the plaintiff’s approval. Thereafter the plaintiff was merely the owner of an interest in Martorella’s right to 55% of the profits from the partnership business. While this interest was originally fixed at 50% of Martorella’s share, it was subsequently modified to 45.45% of his participation in the partnership as of the date of the plaintiff’s return to Government service on or about May 15, 1944. This modification was the mathematical equivalent of 25% of the partnership profits.
We further find that in November or December, 1945, the defendants agreed to dissolution of their partnership effective January 31, 1946. The interest of Martorella was acquired by Wohlers and Brown, who paid for the same in part with partnership funds. They acted with full knowledge of the plaintiff’s rights. Although the plaintiff was not a partner, it is our opinion that a relationship of a fiduciary nature existed between the parties sufficient to warrant a judgment for an accounting by the defendants in favor of the plaintiff. This accounting, however, should be limited to the period expiring January 31, 1946, as well as in the1 other respects provided in the judgment appealed from.
The judgment should be modified accordingly, and as so modified affirmed, without costs.
Peck, P. J., Glennon, Cohn and Callahan, JJ., concur; Van Voorhis, J., concurs on the additional ground that subdivision 2 of section 53 of the Partnership Law authorized an accounting to a person in the plaintiff’s situation upon dissolution of a partnership.
Interlocutory judgment unanimously modified in accordance with opinion and as so modified affirmed, without costs. Settle order on notice.
