Gill v. Just

Appellate Division of the Supreme Court of New York

Gill v. Just

121 A.D.2d 598, 504 N.Y.S.2d 36, 1986 N.Y. App. Div. LEXIS 58582

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

DecidedJune 23, 1986

StatusPublished

This text of 121 A.D.2d 598 (Gill v. Just) 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

Gill v. Just, 121 A.D.2d 598, 504 N.Y.S.2d 36, 1986 N.Y. App. Div. LEXIS 58582 (N.Y. Ct. App. 1986).

Pincite

Opinion

In an action, inter alia, seeking a judgment declaring the plaintiffs’ rights under a joint venture agreement to a share of profits from the sale of land, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Jones, J.), entered April 22, 1985 which dismissed the complaint, and defendants cross-appeal from so much of the judgment as failed to grant relief to the defendants on their counterclaim for the return of commissions.

Judgment modified, on the law, by adding provisions thereto (1) declaring that the plaintiffs have breached the subject agreement and are therefore not entitled to a share of the profits (see, Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74), and (2) awarding the defendants a judgment on their counterclaim for the principal sum of $36,666.66. As so [599]*599modified, judgment affirmed, with costs to defendants, and matter remitted to the Supreme Court, Suffolk County, to set the date from which interest shall run, and for entry of an appropriate amended judgment.

The plaintiffs entered into a joint venture agreement with the defendants in which, for 35% of the profits, the plaintiffs agreed to use their expertise to help develop a parcel of land purchased by the defendants. The agreement also provided that certain acts by the plaintiffs, including fraud or negligence, could result in denial of their share of the profits.

The evidence supports the finding that the plaintiffs failed to disclose to the defendants their receipt of commissions on the sale of the property. That failure permitted the defendants to invoke the provision of the agreement whereby the plaintiffs forfeited their share of the profits. The court will not rewrite the agreement in order to provide the plaintiffs a portion of the profits for work performed (see, Schmidt v Magnetic Head Corp., 97 AD2d 151). Furthermore, the defendants are entitled to recover the commissions paid to the plaintiffs. Lazer, J. P., Mangano, Lawrence and Fiber, JJ., concur.

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In an action, inter alia, seeking a judgment declaring the plaintiffs’ rights under a joint venture agreement to a share of profits from the sale of land, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Jones, J.), entered April 22, 1985 which dismissed the complaint, and defendants cross-appeal from so much of the judgment as failed to grant relief to the defendants on their counterclaim for the return of commissions.

Judgment modified, on the law, by adding provisions thereto (1) declaring that the plaintiffs have breached the subject agreement and are therefore not entitled to a share of the profits (see, Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74), and (2) awarding the defendants a judgment on their counterclaim for the principal sum of $36,666.66. As so [599]*599modified, judgment affirmed, with costs to defendants, and matter remitted to the Supreme Court, Suffolk County, to set the date from which interest shall run, and for entry of an appropriate amended judgment.

The plaintiffs entered into a joint venture agreement with the defendants in which, for 35% of the profits, the plaintiffs agreed to use their expertise to help develop a parcel of land purchased by the defendants. The agreement also provided that certain acts by the plaintiffs, including fraud or negligence, could result in denial of their share of the profits.

The evidence supports the finding that the plaintiffs failed to disclose to the defendants their receipt of commissions on the sale of the property. That failure permitted the defendants to invoke the provision of the agreement whereby the plaintiffs forfeited their share of the profits. The court will not rewrite the agreement in order to provide the plaintiffs a portion of the profits for work performed (see, Schmidt v Magnetic Head Corp., 97 AD2d 151). Furthermore, the defendants are entitled to recover the commissions paid to the plaintiffs. Lazer, J. P., Mangano, Lawrence and Fiber, JJ., concur.

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Bluebook (online)

121 A.D.2d 598, 504 N.Y.S.2d 36, 1986 N.Y. App. Div. LEXIS 58582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gill-v-just-nyappdiv-1986.

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