La Russo v. Paladino

285 A.D. 966, 139 N.Y.S.2d 367, 1955 N.Y. App. Div. LEXIS 6318

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1955
• Status: Published

Opinion

In this action against a surviving partner and others for an accounting of partnership assets brought by the administratrix of the deceased partner and by his wife and son, individually, the Special Term dismissed the complaint on the ground that the only person entitled to seek an accounting is the administratrix of the deceased partner and, as to the administratrix, the action is barred by the ten-year Statute of Limitations. On appeal to this court by the plaintiffs from the order and judgment dismissing their complaint, the only argument they advanced was that the infant son of the deceased partner was a "legal representative" within the meaning of sections 73 and 74 of the Partnership Law and, therefore, the Statute of Limitations was not a bar. This court unanimously affirmed the order and judgment (280 App. Div. 988) and denied motion for leave to appeal to the Court of Appeals (281 App. Div. 753). Thereafter, plaintiffs made a motion at Special Term for leave “ to renew their opposition to defendants’ application for an order dismissing the complaint”, grounded upon the alleged existence of an unexecuted accord between the parties, not previously urged upon the court, which it is claimed would suspend the bar of the Statute of Limitations. The instant appeal is from so much of the order thereon as adheres to the original determination dismissing the complaint. Order unanimously affirmed, with $10 costs and disbursements. No opinion. Present — Nolan, P. J., Wenzel, Schmidt, Beldock and Ughetta, JJ.