24 A.D.2d 648 | N.Y. App. Div. | 1965
In an action for the dissolution of a partnership, for an accounting and for other relief, the defendant Moore appeals from so much of an order of the Supreme Court, Kings County, entered February 15, 1965, as denied his motion to dismiss the complaint on the ground that it fails to state a cause of action against him. Order modified as follows: (1) by striking out its second decretal paragraph denying the defendant Moore’s motion to dismiss the complaint; and (2) by substituting therefor four paragraphs: (a) a paragraph granting the motion to the extent of dismissing the complaint insofar as it seeks relief with respect to all the corporations and matters therein set forth other than the matter set forth in its tenth paragraph with respect to the title to and the ownership of the Ritz Theatre; (b) a paragraph denying the motion to dismiss the complaint insofar as it seeks relief with respect to the title to and the ownership of the Ritz Theatre, as alleged in its tenth paragraph; (c) a paragraph severing the action insofar as it relates to the Ritz Theatre; and (d) a paragraph declaring that the dismissal of the complaint with respect to the corporations and matters other than the Ritz Theatre is without prejudice to plaintiff’s enforcement of any other rights and remedies which he may possess. As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to the defendant Moore. Plaintiff and the defendants Moore and Buster entered into an oral partnership agreement for the purpose of engaging in the business of investing in, owning, managing and operating various business and commercial enterprises. Participation in the capital investment, the profits and the management was to be on an equal basis among the parties. For various reasons the partners agreed to operate their business enterprises in various corporations or in partnerships, or in the names of individuals as nominees for the partnership. Accordingly, various corporations were formed to conduct the partnership enterprises. As to one parcel, however, known as the Ritz Theatre, title was not taken in any corporate name. Instead, the deed to that property was taken in the name of the defendant Buster and one■ Zirinsky (not here involved), and the deed recites that each of them is the owner of “ an undivided one-half interest, as tenants in common.” A declaration of interest by Buster with respect to the Ritz Theatre (which was thereafter duly filed and recorded by the plaintiff) states that Buster holds an undivided one-half interest in the property “ and that the said Buster, Moore and Tow each possesses a one-third undivided interest in and to the said one-half undi