Opinion
April 8, 1952.
Present — Cohn, J.P., Callahan, Van Voorhis, Shientag and Foster, JJ.
The first cause of action was properly dismissed on the law, inasmuch as plaintiff's testimony established that it was not a copartnership. In the absence of findings of facts by the Trial Justice, however, it cannot be determined on what basis the questions of fact were decided arising under the second cause of action for money had and received ( Mason v. Lory Dress Co., 277 App. Div. 660). Plaintiff produced many of the vouchers covering items of the $3,138 which he claims to have spent for defendant's account. It does not appear whether the trial court disbelieved that plaintiff disbursed these moneys, or whether it was found that plaintiff violated his engagements under the agreement. It is unsatisfactory to decide these questions upon this record without seeing or hearing the witnesses. Judgment, insofar as it dismisses the second cause of action, unanimously modified and a new trial thereof ordered, with costs to the appellant to abide the event. Settle order on notice.