Opinion
June 13, 1961
Interlocutory judgment unanimously modified, on the law, on the facts and in the exercise of discretion, to limit the accounting provided for in the second, third and fourth decretal paragraphs to the period commencing September 1, 1958 and ending May 31, 1959, which limitation is consented to by the parties; in lieu of the fifth to ninth, inclusive, and eleventh decretal paragraphs, which are deleted, the matter is referred to the named Official Referee, to hear and report as provided in section 467 of the Civil Practice Act, before whom proceedings are to be had pursuant to rule 174 of the Rules of Civil Practice. The final decretal paragraph relating to costs is deleted; the determination thereof should be made on the entry of the final judgment. (Civ. Prac. Act, § 1477.) The issues adverted to, including those relative to valuation and the decedent's claimed loan, are within the scope of the accounting. After the filing of objections, if the examination of the accounting parties provided for in rule 174 appears to be inadequate, either party may apply to Special Term for appropriate relief. If the parties differ as to the proper basis for valuation, they should be afforded the opportunity to submit evidence in support of the respective interpretations of the provisions for valuation contained in the agreement, as well as the respective valuations contended for. With reference to the so-called affiliated corporations, the accounting shall be limited to transactions between the corporations and the partnership for the period September 1, 1958 to May 31, 1959. The interlocutory judgment, as so modified, is affirmed, without costs. Settle order on notice.
Concur — Valente, J.P., McNally, Stevens, Eager and Steuer, JJ.