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Schulman v. Neubardt

87 A.D.2d 587 Court N.Y. App. Div. Decision date 1982-03-08 English

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p. 587
Doris G. Schulman, as Executrix of N. Jerome Schulman, Deceased, Respondent-Appellant, v Selig B. Neubardt et al., Appellants-Respondents.

— In an action to recover damages for breach of contract and for an accounting, the cross appeals are from a judgment of the Supreme Court, Westchester County (Walsh, J.), dated May 20,1981, which awarded plaintiff the principal amounts of $19,948.61 against both defendants, and $6,333.31 against defendant Ullman on the accounting cause of action, after a nonjury trial. Judgment modified, on the law, by (1) increasing the amount awarded plaintiff in the first decretal paragraph thereof by the principal amount of $1,064.91 and (2) deleting the second decretal paragraph -thereof. As so modified, judgment affirmed, without costs or disbursements. Plaintiff objected to checks drawn by defendants in 1972 in the total amount of $2,839.75, claiming this amount was improperly allocated to partnership expenses. Defendants had the burden of proving that these checks were debited from their personal drawing accounts (cf. Vernon Metal & Produce Co. v Joseph & Bros. Co., 241 NY 544 , 545). Their failure to sustain this burden mandates that the amount be added to the net partnership income for the period, and that plaintiff receive her share (37.5%). Plaintiff also claims entitlement to $12,333.33 from defendant Ullman as a

p. 588
result of an alleged separate agreement described as a “salary continuation plan” between Ullman and plaintiff’s decedent. The trial court awarded plaintiff $6,333.31, although she had failed to allege any amount due on this claim in her exceptions to defendants’ accounting. Such exceptions constitute a pleading similar to an answer, and serve the function of defining the issues and limiting the relief. Plaintiff’s failure to allege this separate agreement in her exceptions precludes her from a recovery based upon it (see Matter of Schaich, 55 AD2d 914 , 915, mot for lv to app den 42 NY2d 802 ). Gulotta, J. P., Thompson, Brown and Niehoff, JJ., concur.

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