Kade v. Sanitary Fireproofing & Contracting Co.

• Court: New York Court of Appeals
• Writing for the Court: PER CURIAM.
• Citation: 256 N.Y. 371,176 N.E. 428
• Parties: KADE v. SANITARY FIREPROOFING & CONTRACTING CO.
• Decision Date: 19 May 1931

256 N.Y. 371
176 N.E. 428

KADE
v.
SANITARY FIREPROOFING & CONTRACTING CO.^*

Court of Appeals of New York.

May 19, 1931.

Action by Eugene Kade against the Sanitary Fireproofing & Contracting Company. From an adverse judgment plaintiff appeals. On motion to dismiss appeal.

Motion denied.

See also 227 App. Div. 622, 236 N. Y. S. 78.

[256 N.Y. 372]Appeal from Supreme Court, Appellate Division, Second department.
Earl H. Gale and Julian A. Ronan, both of New York City, for the motion.

Frank H. Hiscock, of Syracuse, and Carroll B. Low and Henry Hoelljes, both of New York City, opposed.

PER CURIAM.

Plaintiff brought this action as one partner of a firm consisting of himself and William Geraerdts against the corporation defendant and Geraerdts to obtain an accounting for the value of the partnership property which plaintiff claims that defendant, aided by Geraerdts, converted to its own use. The existence of the partnership was denied. Geraerdts died, and the action was continued against the corporation alone. Final judgment was rendered for $151,969 against the defendant, after an interlocutory judgment adjudging that the partnership existed.

On appeal to the Appellate Division, the judgments were reversed and a new trial granted, 227 App. Div. 622, 236 N. Y. S. 78. Findings of fact as to the existence of the partnership were reversed [256 N.Y. 373]as being against the weight of evidence and based upon incompetent testimony. Then came this provisions: ‘It is further ordered and directed that the legal representatives of the estate of William Geraerdts, deceased, be brought in as necessary parties to this action.’

The plaintiff did not desire to bring in the legal representatives of the estate of William Geraerdts, deceased, and took no steps to do so. He moved at Special Term for an order requiring the defendant to apply for final judgment, dismissing the complaint herein ‘for failure of the plaintiff to comply with the direction in the order herein of the Appellate Division, Second Judicial Department, dated June 21st, 1929, that the legal representatives of the Estate of William Geraerdts, deceased, be brought in as necessary parties to this action.’

This order was granted and final judgment ‘not on the merits' was entered in conformity with the order.

An appeal was then taken to this court from such judgment. The notice of appeal says: ‘That the plaintiff-appellant intends to bring up for review on said appeal the said order of the Appellate Division of...