Vatner v. Mackey — 250 A.D. 383

Majority

p. 383

Ralph Vatner, Respondent, v. Richard J. Mackey and Charles H. Berg, Appellants.

First Department,

March 25, 1937.

Richard J. Mackey of counsel [Charles H. Berg with him on the brief], for the appellants.

Harry Yarm, for the respondent.

Upon the evidence adduced there was presented an issue of fact as to the performance or non-performance by the plaintiff of the agreement of partnership. The determination of the trier of the fact being supported by the evidence which he was entitled to deem credible, we may not interfere with his conclusion. (Boyd v. Boyd, 252 N. Y. 422 , 429.)

We disagree, however, with his construction of paragraph 12, and in particular, with his decision with respect to the second sentence thereof as entitling the plaintiff to share in the so-called Breen and Herrlich matters. In our opinion the plaintiff is not entitled to share in fees from matters coming from these sources.

| The judgment should be modified as indicated, and as so modified affirmed, with costs to the appellants.

Present — Martin, P. J., McAvoy, O’Malley, Townley and Glennon, JJ.

Judgment unanimously modified as indicated in opinion, and as so modified affirmed, with costs to the appellants. The findings inconsistent with this determination should be reversed and such new findings made of facts proved upon the trial as are necessary to sustain the judgment hereby awarded. Settle order on notice.

Cases cited

Boyd v. Boyd 252 N. Y. 422 N.Y. 1930-01-07 at 429 p. 383