Majority
p. 822Louis Okin et al., Respondents, v Murray Rafsky, Appellant.
Order, Supreme Court, New York County, entered November 14, 1975, confirming the report of the Special Referee and directing that judgment be entered in favor of plaintiffs and judgment entered thereon November 19, 1975 for the sums demanded, together with interest, costs and disbursements, unanimously affirmed, without costs and without disbursements. The determination by the Special Referee as to the sums due and owing to each plaintiff (in favor of Louis Okin $13,965.30; in favor of Anne Okin $8,202.66) was amply and properly supported by the evidence through the testimony of Mr. Eldot, the certified public accountant who had familiarity and experience with the books and records and tax returns of the "partnerships” in
p. 823
which the plaintiffs and the defendant were members. The defendant has offered no legal basis to disturb the result reached below. Moreover, the defendant may not now utilize the defense of the Statute of Frauds, inasmuch as it was not pleaded. Concur—Murphy, J. P., Lupiano, Birns, Capozzoli and Nunez, JJ.