Helfenbaum v. Mish

Appellate Division of the Supreme Court of New York

Helfenbaum v. Mish

248 A.D. 901, 290 N.Y.S. 708, 1936 N.Y. App. Div. LEXIS 8009

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

DecidedOctober 23, 1936

StatusPublished

This text of 248 A.D. 901 (Helfenbaum v. Mish) 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.

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Helfenbaum v. Mish, 248 A.D. 901, 290 N.Y.S. 708, 1936 N.Y. App. Div. LEXIS 8009 (N.Y. Ct. App. 1936).

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Opinion

Judgment in favor of plaintiff modified so as to provide that plaintiff have an accounting in accordance with proposed conclusions of law numbered 5 and 6, which are hereby found. As so modified, the judgment is unanimously affirmed, with costs to appellant. On December 15, 1934, when plaintiff was expelled from the copartnership, he had a pecuniary interest in every existing contract that was incomplete. He also had a pecuniary interest in the trade name of the copartnership and the assets then existing. Such contracts as were wrongfully taken in that trade name after plaintiff was expelled became a proper subject-matter of accounting by the defendants to the plaintiff in view of the taking of them in the trade name in which plaintiff had an interest, and in so far as such contracts were performed with the equipment and assets of the copartnership theretofore vesting in the plaintiff and the defendants under the trade name. The findings of fact indicate that such was the conduct of the defendants and the conclusions of law should be of a scope broad enough to accord plaintiff his full rights. To do otherwise would be inequitable. In other words, the situation is one where the general rule should be applied that an accounting under a dissolution of a partnership should be up to and as of the date of the decree. (Barclay v. Barrie, 209 N. Y. 40, 53; 30 Cyc. 658; Lindley on Partnership [10th ed. 1935], p. 681.) Present — Lazansky, P. J., Carswell, Davis, Johnston and Adel, JJ.

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Judgment in favor of plaintiff modified so as to provide that plaintiff have an accounting in accordance with proposed conclusions of law numbered 5 and 6, which are hereby found. As so modified, the judgment is unanimously affirmed, with costs to appellant. On December 15, 1934, when plaintiff was expelled from the copartnership, he had a pecuniary interest in every existing contract that was incomplete. He also had a pecuniary interest in the trade name of the copartnership and the assets then existing. Such contracts as were wrongfully taken in that trade name after plaintiff was expelled became a proper subject-matter of accounting by the defendants to the plaintiff in view of the taking of them in the trade name in which plaintiff had an interest, and in so far as such contracts were performed with the equipment and assets of the copartnership theretofore vesting in the plaintiff and the defendants under the trade name. The findings of fact indicate that such was the conduct of the defendants and the conclusions of law should be of a scope broad enough to accord plaintiff his full rights. To do otherwise would be inequitable. In other words, the situation is one where the general rule should be applied that an accounting under a dissolution of a partnership should be up to and as of the date of the decree. (Barclay v. Barrie, 209 N. Y. 40, 53; 30 Cyc. 658; Lindley on Partnership [10th ed. 1935], p. 681.) Present — Lazansky, P. J., Carswell, Davis, Johnston and Adel, JJ.

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248 A.D. 901, 290 N.Y.S. 708, 1936 N.Y. App. Div. LEXIS 8009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helfenbaum-v-mish-nyappdiv-1936.

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