Clyde v. Schaller

263 A.D. 844, 31 N.Y.S.2d 686, 1941 N.Y. App. Div. LEXIS 5236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1941
• Status: Published

Opinion

In an action for an accounting under an oral agreement of joint venture under which the parties were to divide the profits of a contract for the alteration of a building, interlocutory judgment in favor of plaintiff unanimously affirmed, with costs. It was established by a preponderance of the evidence that plaintiff was not employed by the owners of the property to supervise the work of construction in their behalf. The individual defendant testified that plaintiff did not in fact superintend the work. Under these circumstances there was no room for the conclusion that the contract sued upon was illegal because plaintiff was serving opposing interests. There was no violation of section 439 of the Penal Law for the reason stated above, and for the further reason that even if the plaintiff were an agent or employee of the owners, the proof is undisputed that he made his agreement with the defendants with the knowledge and consent of Ms principals or employers. The evidence was adequate to support the finding of the trial court as to the making of the oral agreement between the parties. Present ■ — - Lazansky, P. J., Johnston, Adel, Taylor arid Close, JJ.