Samuel v. Bastress

231 A.D. 867

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1930
• Status: Published

Opinion

Judgment reversed upon the law and the facts, with costs, and judgment directed in plaintiff’s favor, with costs, the amount to be determined by an official referee, to whom the matter will be referred to take and state the account. The evidence establishes an agreement of joint adventure. The fact that John E. Bastress in his lifetime had full knowledge of plaintiff’s claim removes this ease from the strict rule of construction enunciated in Hamlin v. Stevens (177 N. Y. 39) and Holt v. Tuite (188 id. 17). (See Matter of McMillan, 218 id. 64.) The agreement made by plaintiff and John E. Bastress was for an equal interest in all real estate and building operations, including those of E. C. Dillon Construction Co., Inc., in which the money raised upon plaintiff’s securities was used. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings and conclusions will be made in conformity herewith. Lazansky, P. J., Kapper, Hagarty, Carswell and Scudder, JJ., concur. Settle order on notice.