Opinion
May 12, 1970
Interlocutory order and judgment (one paper), entered on November 20, 1969, unanimously modified on the law and on the facts to the extent of deleting therefrom those portions ordering relief to plaintiff, and otherwise affirmed, with $50 costs and disbursements to defendants-appellants-respondents. The trial court having correctly found that the plaintiff had failed to prove the existence of an over-all joint venture, and there being no fiduciary relationship between the parties, it was error to direct an accounting. ( Bradkin v. Leverton, 26 N.Y.2d 192, 199 n. 4; Kaminsky v. Kahn, 20 N.Y.2d 573, 582; Matter of Steinbeck v. Gerosa, 4 N.Y.2d 302, 317-318.) In addition, the statements and payments received and accepted by plaintiff clearly spell out an account stated, barring all of plaintiff's claims. As to the 6th, 18th and 21st causes of action, which were referred to a Referee for the purpose of inquiring into and fixing fees, they, too, are barred, not only for the reasons already above stated, but for the further reason that they do not meet the requirements of the Statute of Frauds (General Obligations Law, § 5-701, subd. 10.)
Concur — Capozzoli, J.P., McGivern, Markewich and Tilzer, JJ.