Opinion
May 18, 1976
In a most unusual move, the plaintiff-respondent has, by motion, requested that we modify the judgment appealed from so as to grant appellants most of the relief sought by them. Thus, both parties agree to the disposition of this appeal except that the defendants seek to retain the sum of $6,250, representing plaintiff's investment in a joint venture with defendants. On March 29, 1973, defendant-appellant Maran sent plaintiff a check for the said sum of $6,250 representing plaintiff's investment in their joint venture. Plaintiff had not deposited the check at the time of trial, but neither had he returned it. As stated, the only dispute between these parties is this sum of money, interest thereon and the costs of this appeal. Under the circumstances, we unanimously reverse, on the law, the judgment entered in Supreme Court, New York County, on December 19, 1974, without costs and without disbursements, and declare the joint venture agreement dated September 11, 1972 rescinded; that plaintiff does not have any interest in the first mortgage and note dated December 11, 1972 from 1172 Anderson Corporation to defendant Maran, and defendants are free to transfer or alienate the same. Plaintiff has no right to an accounting as to the status of the joint venture. Defendants are directed to pay to plaintiff the sum of $6,250 without interest. Settle order on notice.
Concur — Markewich, J.P., Lupiano, Silverman, Nunez and Yesawich, JJ. [ 82 Misc.2d 702.]