Stuts v. Stuts

In an action for a partnership accounting, for a judgment that property conveyed to and held by the individual defendant is an asset of the alleged partnership, and for other relief, defendants appeal from an order, insofar as it denies their motion to dismiss the first and second causes of action pleaded in plaintiff’s complaint, pursuant to rules 106 and 107 of the Rules of Civil Practice. Order affirmed, with $10 costs and disbursements, with leave to defendants to answer within ten days from the entry of the order hereon. The first cause of action pleaded may be construed as alleging the formation and existence of a partnership, the conduct of the business transacted between the parties by the partnership, and the organization of a corporation which functioned solely for the purpose of holding title to the real property on which the partnership business was conducted. So construed, the pleading is sufficient. Epstein v. Leibner (258 App. Div. 1073) and Boag v. Thompson (208 App. Div. 132) are not authorities to the contrary. The second cause of action pleaded is not one to redress a wrong to the corporation, or to plaintiff as a stockholder (cf. Brock v. Poor, 216 N. Y. 387), but seeks an adjudication in connection with an action for a partnership accounting that property, conveyed to the individual defendant, is held by him for the benefit of the partnership and as partnership property. Lewis, P. J., Carswell, Johnston, Adel and Nolan, JJ., concur.