Opinion
July, 1931.
Present — Lazansky, P.J., Hagarty, Scudder, Tompkins and Davis, JJ. Settle order on notice.
Judgment modified by eliminating therefrom the provisions that the referee shall determine the value of the good will of the copartnership which came to an end upon the death of plaintiff's intestate and that the defendant shall account to the plaintiff for the value of such good will, and as so modified unanimously affirmed, without costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. We are of opinion that there was no good will incidental to the business of the copartnership which survived the dissolution of the copartnership upon the death of Lloyd. Defendant concedes that he is liable to account for the value of all the physical assets of the copartnership. Promptly upon the death of his partner, Lloyd, the defendant discontinued the use of the firm name and the firm's stationery, but continued business in the same place under his own name. The nature of the business conducted by the copartnership, that of weighing and gauging, was of a personal character, bringing it within the rule laid down in Bailly v. Betti ( 241 N.Y. 22) and Jones v. Cadenas ( 200 App. Div. 635).