Arthur v. Frazee — 242 N.Y. 522

Majority

p. 522

Daniel V. Arthur, Respondent, v. Harry H. Frazee, Appellant.

Headnote

J oint ownership — evidence — action to recover proportionate share of net profits — parol evidence as to terms of contract — conclusions.

Arthur v. Frazee, 214 App. Div. 776 , affirmed.

(Argued January 18, 1926;

decided February 24, 1926.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1925, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover a proportion of' the net profits of a certain play of which, it was alleged, plaintiff and defendant were joint owners. The only questions on appeal were whether the admission of certain testimony given by the plaintiff,

p. 523

respondent, violated the parol evidence rule, and whether certain testimony given by the plaintiff was testimony as to a conclusion of fact and usurped the function of the jury.

Jacob I. Goodstein for appellant.

Benjamin Pepper and M. L. Malevinsky for respondent.

Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., McLaughlin, Crane and Andrews, JJ. Dissenting: Pound and Lehman, JJ. Absent: J.