Vlacancich v. Kenny

246 A.D. 560

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1935
• Status: Published

Opinion

In an action for an accounting, judgment in favor of the defendants on their counterclaim reversed upon the law and the facts, counterclaim dismissed, with costs, and judgment directed for plaintiff for the sum of $1,783.33, with interest, and costs. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings will be made in accordance herewith. In our opinion the intention of the decedent in making the agreement in question with the plaintiff was that plaintiff should have one-third of any amount of the proceeds of sale which remained after the deduction of the amount of the mortgages and should not be liable for any losses which might be incurred in the carrying of the property and its sale. To hold otherwise would be to ignore entirely the language of the agreement to that effect. Young, Carswell, Tompkins and Johnston, JJ., concur; Lazansky, P. J., dissents and votes for reversal of the judgment and for judgment dismissing complaint and counterclaim, being of opinion that it was not intended that plaintiff should profit if there were no profits, nor that he was to bear a share of losses. Settle order on notice.