Gerstein v. Teitelbaum

273 A.D. 886, 77 N.Y.S.2d 502

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1948
• Status: Published

Opinion

Per Curiam.

Though it is claimed that the partnership was terminable at will, plaintiff does not allege that the partnership was dissolved at his election. The bringing of an action for dissolution of a partnership and for an accounting does not constitute an election on the part of plaintiff to exercise his right to dissolve the partnership notwithstanding that he had such right to dissolve. There must be a notice of election to terminate or a mutual agreement. (Brady v. Powers, 112 App. Div. 845, 850, mod. 188 N. Y. 626; Klenoff v. Goodstein, 268 App. Div. 510, 511.)

The action brought by plaintiff is one based on the present existence of the partnership. It is not an action for an accounting based on a dissolution. It is an action for a dissolution and an accounting incidental to such dissolution.

Summary judgment may not be granted to plaintiff in a suit to dissolve a partnership (Rules Civ. Prae., rule 113).

We think, too, that the appointment of receivers pendente lite is unnecessary in the circumstances of this case. A speedy trial of the action may be had at which all the differences between the parties may be adjudicated.

The order accordingly should be reversed, without costs, the motion for summary judgment denied and the appointment of receivers vacated.

Peck, P. J., Glennon, Dore, Cohn and Callahan, JJ;, concur.

Order unanimously reversed, without costs, the motion for summary judgment denied and the appointment of receivers vacated. Settle order on notice.