Mattikow v. Sudarsky

• Decision Date: 19 June 1928
• Citation: 248 N.Y. 404,162 N.E. 296
• Parties: MATTIKOW v. SUDARSKY et al.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 404

162 N.E. 296

MATTIKOW

v.SUDARSKY et al.

Court of Appeals of New York.

June 19, 1928.

Action by Samuel Mattikow against Eleazer Cedar, wherein Ephraim Sudarsky and others, as executors under the last will and testament of Eleazer Cedar, deceased, were substituted as defendants after his death. Judgment of the Special Term dismissing the complaint upon the merits was affirmed by the Appellate Division (222 App. Div. 833, 226 N. Y. S. 863), and plaintiff appeals by permission.

Reversed, and a new trial granted.

Appeal from Supreme Court, Appellate Division, Second department.

David T. Smith, of New York City, and Meier Steinbrink and Harold M. Kennedy, both of Brooklyn, for appellant.

Albert Conway, of Brooklyn, Meyer Kreeger, of New York City, and Denis M. Hurley, of Brooklyn, for respondents.

POUND, J.

Since the trial of this case the original defendant, Eleazer Cedar, died, and his personal representatives have been substituted as defendants. He is referred to herein as defendant. The Trial Court has found that plaintiff and defendant made an oral agreement to form a partnership for the purchase of real estate, plaintiff contributing his knowledge, and defendantthe necessary cash, the profits to be equally divided after paying defendant his advances with interest, and the plaintiff having the right at any time to receive a conveyance of one-half interest in lands so purchased upon payment of one-half of the advances made thereon by the defendant.

In this action to dissolve the joint adventure, to compel the defendant to account, and to compel him also to execute a deed, the complaint has been dismissed, without hearing the evidence for the defense, on the ground that the agreement is void under the statute of frauds. Not only has there been a refusal to compel the execution of a deed; there has been a refusal even to compel an accounting as to profits or to charge the defendant with any obligations as to the lands said to have been acquired for the benefit of the joint adventure.

[1] The question whether an oral contract for a partnership in lands is enforceable under the statute of frauds has been repeatedly answered in the affirmative by the decisions of this court.

‘It is established, by abundant authority in this state, that a partnership may exist in reference to the purchase, sale and ownership of and that it may be created by a parol agreement.’ Traphagen v. Burt, 67 N. Y. 30, 33, citing Chester v. Dickerson, 54 N. Y. 1, 13 Am. Rep. 550, where the rule was stated, but as dictum only.

‘Real estate purchased as partnership property is not within the prohibition of the statute. In the first place, it is not the case where the consideration is paid by one person and a conveyance taken in the name of another. The consideration is paid by all. It is not, therefore, within the letter of the statute. But a more substantial reason is, that property thus held is regarded as personal property, for the purpose of paying debts and adjusting the equities between the partners; and the individual member holding the legal title is a trustee for the partnership in respect to the property as personalty; and when the debts are paid and the claims of the several members as between themselves paid, the trust for partnership is discharged and a trust results to the other mambers of the firm, and the heirs...