Opinion
December 15, 1960
Appeal from the City Court of the City of New York, County of New York, GUY GILBERT RIBAUDO, J.
Goldwater Flynn ( James L. Goldwater and Robert M. Dubow of counsel), for Lynda Dick, appellant.
Garey Garey ( Wm. Francis Corson and Allan K. Peckel of counsel), for Jack R. Dick, appellant.
Singer Corwin ( Walter A. Bobrow of counsel), for respondent.
Although the complaint pleads a definite, clear and simple action upon a promissory note, plaintiff's affidavit in support of his motion for summary judgment alleged that the note was conditionally given as security for plaintiff's investment in a joint venture. In this aspect of the transaction, the instant action is premature. Until the defendants' liability has been established and the plaintiff's loss is measurable, an action at law between the joint venturers may not be maintained. On the other hand, the plaintiff may pursue his remedy in equity for an accounting. As to the present complaint, nevertheless, the plaintiff may not defeat the motion under rule 113 of the Rules of Civil Practice because he may have a cause of action different from the one set forth in the complaint ( Cohen v. City Company of N.Y., 283 N.Y. 112; Elsfelder v. Cournand, 270 App. Div. 162 [1st Dept.]; Bright v. O'Neill, 3 A.D.2d 728 [2d Dept.]; Potolski Int. v. Hall's Boat Corp., 282 App. Div. 44 [3d Dept.]).
The order should be modified, with $10 costs and disbursements, and the motions of the defendants for summary judgment granted.
AURELIO and TILZER, JJ., concur; HOFSTADTER, J.P., dissents and votes to affirm.
Order modified, etc.