Moray v. Daniel

Full title: LAWTON R. MORAY, Respondent, Appellant, v. CHARLES E. DANIEL, Appellant…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 2, 1934

240 App. Div. 69 (N.Y. App. Div. 1934)

269 N.Y.S. 109

Opinion

February 2, 1934.

Appeal from Supreme Court of New York County.

Frederick E. Klein, for the plaintiff.

Philip Zierler of counsel [ Orr Brennan, attorneys], for the defendant.

Present — FINCH, P.J., MARTIN, O'MALLEY, TOWNLEY and GLENNON, JJ.

PER CURIAM.

These are cross-appeals by plaintiff Lawton R. Moray and one of the defendants, Charles E. Daniel. Inasmuch as we do not believe that plaintiff has a cause of action at law against the appealing defendant, it is unnecessary to discuss the various points urged by plaintiff.

Plaintiff was a partner in the firm of Daniel, Moray Wallen. It appears that on the 24th day of March, 1932, plaintiff and his copartners, defendants Charles E. Daniel and George R. Wallen, entered into an agreement in writing to dissolve the copartnership as of March 31, 1932. By its terms, plaintiff sold to the defendants Charles E. Daniel and George R. Wallen, and they purchased plaintiff's right, title and interest in and to the good will of the copartnership. The amount of money to be received by plaintiff was to be fixed by arbitrators.

The only interest plaintiff has in the copartnership assets is the sum of money to be allowed upon the arbitration. It was stated upon the argument, and the record indicates, that an action for an accounting is now pending between the plaintiff and his former partners.

Plaintiff did not reserve any right to institute an action on behalf of the partnership based upon a claim which may have existed at the time the dissolution agreement was executed. Therefore, his remedy, if any, must be enforced by an action for an accounting. He cannot recover at law upon a claim which he no longer owns.

For the reasons assigned the appealing defendant is entitled to a judgment dismissing the complaint. The order appealed from, in so far as it denies said defendant's motion to dismiss the complaint, should be reversed, with twenty dollars costs and disbursements, and said motion granted.

PER CURIAM.

Order so far as appealed from by defendant reversed, with twenty dollars costs and disbursements to the defendant, and the motion to dismiss the complaint granted.