Werner v. Jocelyn-Varn Oil Co.

26 A.D.2d 925 | N.Y. App. Div. | 1966

Order entered June 9, 1966 herein appealed from unanimously modified, on the law, the facts and in the exercise of discretion, to grant leave to the plaintiff to move for a modification of the interlocutory direction for an account set forth in the interlocutory decree of December 11, 1964, and to move for the submission of a supplemental account. As so modified the order appealed from is otherwise affirmed, without costs or disbursements to any party. The primary issue of fact is whether any of the funds of the 1959 Program, to which plaintiff and others contributed, were used to produce a profit as plaintiff claims, and what percentage of such profit, if any, would be allocable to the plaintiff. Should the motion for a modification be granted, and in the interests of an orderly and expeditious trial, it would be advisable for plaintiff, among other things, to ascertain what leases were purchased or sold in 1959 and 1960, the cost of such leases, what funds were utilized in the purchase of particular leases and the amounts thereof; the source of the funds, the amount of withdrawals with respect to each lease and the date of such withdrawal. There should be a specification of the moneys received from each lease sale, indicating whether there is a profit or loss on such sale; whore and when the moneys were deposited, and how allocable. Undoubtedly other problems are involved. The indication of matters which should be revealed on any supplemental accounting should the same be granted is not intended to be exclusive. Concur — Breitel, J. P., Rabin, Stevens, Steuer and Capozzoli, JJ.