Opinion
March 16, 1971
Appeal from an order of the Supreme Court in Chemung County which denied a motion by defendant for partial summary judgment dismissing the complaint and directing specific performance of a partnership agreement. Plaintiffs and defendant, brothers, have been copartners in a partnership at will since 1950, which agreement was amended and supplemented in 1958. Differences over a period of time arose between the parties, the result being that the plaintiffs notified defendant by letter dated April 15, 1970 that they wished to dissolve the partnership or in the alternative offered defendant a liquidated amount for his interest, the offer being effective until April 22, 1970. The offer was not accepted and the plaintiffs notified defendant that the partnership would terminate on May 1, 1970. The present action was commenced to dissolve the partnership. The defendant moved pursuant to CPLR 3212 to grant (1) judgment dismissing the complaint and (2) specific performance of the partnership contract by the appointment of a certified public accountant to determine the value of the partnership property. Special Term denied the motion, found the partnership agreement ambiguous and directed a trial of the issues. It is not necessary to detail the terms of the contract, but suffice it is to note that paragraph 9 thereof is pertinent upon the death of a partner; paragraph 10 is applicable when a partner "desires to withdraw from the said co-partnership" and paragraph 14 comes into play if "there is any dispute between a withdrawing or disabled partner or the estate of a deceased partner". It is readily apparent that so far as providing for an evaluation of the interest of a withdrawing partner, the partnership agreement is ambiguous. From a reading of the letter of April 15, 1970 and a subsequent letter of April 23 giving notice of the plaintiff's intention to terminate the partnership, there remains an issue as to whether any of the paragraphs of the agreement are applicable to the present situation. The agreement contains no paragraph directed solely to the dissolution of the partnership. Appellant relies in great measure on the decision in Nichols v. Nichols ( 306 N.Y. 490). The separation agreement therein was found to be clear and unambiguous. We concur with Special Term that the present agreement on a motion for summary judgment is ambiguous. This memorandum is not intended to limit any issues which may arise upon the trial nor do we reach the merits of the controversy. Order affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Sweeney and Simons, JJ., concur.