Berkule v. Feldman

Appellate Division of the Supreme Court of New York

Berkule v. Feldman

20 A.D.2d 761, 247 N.Y.S.2d 550, 1964 N.Y. App. Div. LEXIS 4239

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 10, 1964

StatusPublished

This text of 20 A.D.2d 761 (Berkule v. Feldman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berkule v. Feldman, 20 A.D.2d 761, 247 N.Y.S.2d 550, 1964 N.Y. App. Div. LEXIS 4239 (N.Y. Ct. App. 1964).

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Opinion

Order, entered on May 17, 1963, denying appellants’ motion to dismiss as insufficient the second, third and fifth causes of action in the amended complaint and to strike certain paragraphs thereof, unanimously affirmed, without costs. Although we agree with Special Term’s disposition of this motion, we deem it appropriate to record our understanding of plaintiff’s allegations regarding the law of Georgia. The agreement of limited partnership, which is annexed to and made part of the amended complaint, clearly provides that the general partners have power to sell the real estate and personalty owned by the partnership without the consent of the limited partners (subject to the condition, presently irrelevant, set forth in the penultimate paragraph of section 12 of the agreement). Reading allegations and agreement together, we understand plaintiffs to allege that under Georgia law the general partners of a limited partnership, notwithstanding such a provision as is contained in the pleaded partnership agreement, lack power to sell the entire partnership assets unless the limited partners consent to the specific transaction of sale or ratify it. We do not now, of course, pass upon the validity of this allegation. Concur — Botein, P. J., Breitel, Raibin, Stevens and Eager, JJ. [39 Misc 2d 250.]

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Order, entered on May 17, 1963, denying appellants’ motion to dismiss as insufficient the second, third and fifth causes of action in the amended complaint and to strike certain paragraphs thereof, unanimously affirmed, without costs. Although we agree with Special Term’s disposition of this motion, we deem it appropriate to record our understanding of plaintiff’s allegations regarding the law of Georgia. The agreement of limited partnership, which is annexed to and made part of the amended complaint, clearly provides that the general partners have power to sell the real estate and personalty owned by the partnership without the consent of the limited partners (subject to the condition, presently irrelevant, set forth in the penultimate paragraph of section 12 of the agreement). Reading allegations and agreement together, we understand plaintiffs to allege that under Georgia law the general partners of a limited partnership, notwithstanding such a provision as is contained in the pleaded partnership agreement, lack power to sell the entire partnership assets unless the limited partners consent to the specific transaction of sale or ratify it. We do not now, of course, pass upon the validity of this allegation. Concur — Botein, P. J., Breitel, Raibin, Stevens and Eager, JJ. [39 Misc 2d 250.]

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Bluebook (online)

20 A.D.2d 761, 247 N.Y.S.2d 550, 1964 N.Y. App. Div. LEXIS 4239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berkule-v-feldman-nyappdiv-1964.

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