Esh v. Rauch

271 A.D.2d 963

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1947
• Status: Published

Opinion

It is material and necessary to the plaintiff to examine defendants before trial concerning conduct on their part which the plaintiff charges constituted a violation of their fiduciary obligation to the partnership, thus tending “ to affect prejudicially the carrying on of the business ” justifying a dissolution decree pursuant to section 63 of the Partnership Law. • The objection is untenable that these are matters to be gone into only upon an accounting under an interlocutory decree of dissolution. The examination before trial relates to matters which plaintiff must prove in order to become entitled to an interlocutory judgment directing the dissolution and the winding up of the partnership. The order appealed from is modified by allowing plaintiff to examine the defendants concerning the substance of paragraphs 4, 6 and 7 of the notice of motion in addition to what was granted by Special Term, but paragraph 8th is disallowed. As so modified the order, so far as appealed from, is affirmed, without costs. The date for the examination to proceed to be fixed in the order. Settle order on notice. Present — Martin, P. J., Glennon, Dore, Cohn and Van Yoorhis, JJ.