Opinion
March, 1935.
Action in equity for rescission of a partnership dissolution agreement and the cancellation of a release given by plaintiff on such dissolution, upon the ground of fraud, and for an accounting by defendant of all partnership dealings. Counterclaim by defendant for damages for an alleged breach of plaintiff's promise, in said dissolution agreement, not to "directly or indirectly interfere with, molest, annoy or disturb" the defendant "in his personal life or business affairs, under penalty of damages." Judgment in so far as it dismisses the complaint on the merits unanimously affirmed, without costs. In so far as it finds against plaintiff and in defendant's favor on the counterclaim for $5,089.25, judgment reversed on the law and the facts and the counterclaim dismissed, without costs. In the absence of allegations or proof of malice or lack of probable cause on the plaintiff's part in bringing this action, the defendant is not entitled to recover on his counterclaim. Findings of fact and the conclusion of law inconsistent herewith are reversed. Lazansky, P.J., Hagarty, Scudder, Tompkins and Davis, JJ., concur. Settle order on notice.