Flynn v. Dick

27 Misc. 2d 547, 208 N.Y.S.2d 697, 1960 N.Y. Misc. LEXIS 2018

Opinion

Per Curiam.

Although the complaint pleads a definite, clear and simple action upon a promissory note, plaintiff’s affidavit in support of his motion for summary judgment alleged that the note was conditionally given as security for plaintiff’s investment in a joint venture. In this aspect of the transaction, the instant action is premature. Until the defendants’ liability has been established and the plaintiff’s loss is measurable, an action at law between the joint venturers may not be maintained. On the other hand, the plaintiff may pursue his remedy in equity for an accounting. As to the present complaint, nevertheless, the plaintiff may not defeat the motion under rule 113 of the Rules of Civil Practice because he may have a cause of action different from the one set forth in the complaint (Cohen v. City Company of N. Y., 283 N. Y. 112; Elsfelder v. Cournand, 270 App. Div. 162 [1st Dept.]; Bright v. O’Neill, 3 A D 2d 728 [2d Dept.]; Potolski Int. v. Hall’s Boat Corp., 282 App. Div. 44 [3d Dept.]).

The order should be modified, with $10 costs and disbursements, and the motions of the defendants for summary judgment granted.

Aurelio and Tilzeb, JJ., concur; Hoestadter, J. P., dissents and votes to affirm.

Order modified, etc.