Opinion
April 3, 1950.
Action for partition of certain real property in Queens County. The answer set up an affirmative defense invoking an alleged agreement of partnership between the plaintiff and the defendants that the identical real estate was to be deemed property of the partnership and managed under a trade name in the interest of said partnership. Interlocutory judgment in favor of the plaintiff, decreeing partition, reversed on the law and the facts and a new trial granted, with costs to abide the event. For the purposes of a new trial, findings of fact are reversed and conclusions of law disapproved. The court erred in the exclusion of documentary and oral evidence proffered to establish an independent agreement of partnership. Under the pleadings a determination as to whether or not the claimed partnership existed, and whether or not the real property was to be held as partnership property, takes precedence over a decision as to the right to seek or accord partition. ( Danvers v. Dorrity, 14 Abb. Prac. 206, 209.) All of the evidence bearing upon this issue should have been received, and a determination had (a) as to whether a partnership existed, as parties may create a partnership evidenced by their statements, oral or written, or by their conduct ( Van Da Linda v. Stevens, 9 App. Div. 179, 181); and (b) whether or not the partnership, if any, embraced within it a purpose or intention that the real property was to be held as a partnership asset. If the latter be the fact, then action in respect of the partnership would require appropriate protection of creditors thereof. Nolan, P.J., Carswell, Johnston and Sneed, JJ., concur; Adel, J., dissents and votes to affirm.