Opinion
March 14, 1966
In an action between partners for an accounting of partnership earnings and profits in which defendants interposed a counterclaim for the return of money paid plaintiff following his becoming disabled, plaintiff appeals from an order of the Supreme Court, Queens County, entered March 31, 1965, which denied his motion for summary judgment. Order reversed, without costs, plaintiff's motion for summary judgment granted; and interlocutory judgment ordered to be made and entered directing defendants to render a final accounting on the basis of a dissolution of the partnership in August, 1961, said judgment to be settled on five days' notice at Special Term. The actions of defendants beginning in August, 1961 in refusing to continue to pay plaintiff, who had become disabled in May or June, 1961, his share in the proceeds of the partnership and in refusing to account to plaintiff as provided in the partnership agreement manifested an unequivocal election by defendants to dissolve the partnership at will (cf. Spears v. Willis, 151 N.Y. 443, 449; Hutchinson v. Sperry, 158 App. Div. 704, 708, affd. 214 N.Y. 616). There should, therefore, be an accounting pursuant to the partnership agreement on the basis of a dissolution of the partnership in August, 1961. Ughetta, Acting P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.