O'Brien v. Birnbaum

251 A.D. 895, 297 N.Y.S. 255, 1937 N.Y. App. Div. LEXIS 8195

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1937
• Status: Published

Opinion

In an action in equity for an accounting of an alleged joint venture between the parties, both of whom are attorneys and counselors at law, interlocutory judgment in favor of the plaintiff reversed on the law and the facts, with costs, and complaint dismissed, with costs. Inconsistent findings will be reversed and new findings made, (a) The evidence is wholly insufficient in law to support the fundamental finding, made by the learned trial court, that the alleged agreement of joint venture was made (Summa v. Masterson, 215 App. Div. 159); (b) assuming, however, that the pleaded agreement was actually made, it was not legally binding on the parties thereto because as to the possible future business to be obtained by the defendant, in which plaintiff was to share, the agreement was wholly vague, uncertain and indefinite and, therefore, unenforeible. (United Press v. New York Press Co., 164 N. Y. 406, 410; Emerson Phonograph Co., Inc., v. Waterson, 183 App. Div. 386; affd., 228 N. Y. 583; Wallach v. Mendelson, 115 Misc. 499.) Lazansky, P. J., Davis, Johnston and Taylor, JJ., concur; Carswell, J., not voting. Settle order on notice.