Lester v. Rubinstein

3 A.D.2d 902, 162 N.Y.S.2d 707, 1957 N.Y. App. Div. LEXIS 5370

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1957
• Status: Published

Opinion

Order unanimously modified to the extent of permitting plaintiff to replead and, as so modified, affirmed, with $20 costs and disbursements to the respondents. The complaint is insufficient to allege the terms of the joint venture or to connect the purchase of the property or the later action of Rubinstein with the joint venture. For example: It is not clear whether plaintiff’s assignor did in fact invest his time, skill and money in the alleged joint venture and, if so, to what extent and in what manner. The subject matter of the joint venture is stated to be the “ American assets ” of the Chosen Corporation, Ltd., but there are no allegations of ultimate fact setting forth clearly whether these assets ever became the property of plaintiff’s assignor and Rubinstein, or either of them. Without setting forth the relationship of plaintiff’s assignor and Rubinstein to Mountbreak Corporation, and the nature of that corporation’s ownership of the assets of the alleged joint venture, there is no showing that the joint venture eventuated. While the second amended complaint does not sufficiently allege facts to support the existence of the joint venture upon which the demand for an accounting is predicated, it cannot be said that if properly pleaded plaintiff’s only remedy would be an action for breach of contract which would be barred by the six-year Statute of Limitations. Settle order on notice. Concur — Peek, P. J., Botein, Frank, Valente and McNally, JJ.