Opinion
May 2, 1924.
Kurzman Frank [ Sidney Newborg of counsel], for the appellant.
David I. Shapiro [ Benjamin Tuska of counsel], for the respondent.
There is raised by this appeal the validity of the defendant's counterclaim. Plaintiff's deceased husband and the defendant were copartners. After the death of her husband there was an accounting, and then the parties entered into a "Winding up agreement" whereby the partnership matters were settled, plaintiff assigning to the defendant in her individual as well as representative capacity all right in the partnership lease and good will and agreeing to receive in return a stipulated sum. It further was agreed that a contingent reserve fund of $18,000 should be set aside "against which shall be charged payments properly chargeable against said business prior to January 1, 1921," said fund to be accounted for and any balance thereof to be divided equally between the estate and the defendant.
This action is brought for an accounting as to said fund of $18,000. The answer set up as a defense that the fund had been duly accounted for, and as a counterclaim alleges that "the defendant expended a sum of about $30,000 which represents about $12,000 in excess of the contingent reserve fund provided for in the agreement aforementioned, of which excess the plaintiff is obligated to the defendant for one-half thereof, to wit, the sum of $6,000."
It will be noted, first, that the defendant does not allege that the excess of $12,000 was incurred in connection with the business at all. A further objection which goes to the substance of the counterclaim is that the winding up agreement shows upon its face that it was a final agreement. This intention of the parties appears in several places in the agreement, as follows:
"WHEREAS, the said Estate has accepted said account as being accurate, correct and final and binding on said Sophia Rosner, individually and as administratrix of the Estate of Paul Rosner, deceased, and is willing to enter upon a settlement with said Henry Rosner upon the basis of said account, and * * *
" Fourth. Said estate accepts said account as being accurate, correct and final and binding upon said Sophia Rosner, individually and as administratrix of the Estate of Paul Rosner, deceased, subject to corrections for errors and omissions. The valuations placed upon the inventory are accepted as correct. * * *
" Eighth. This settlement is accepted by the said Sophia Rosner, the said party of the second part herein, individually for herself and as administratrix of said Estate of Paul Rosner, deceased, as binding, final and conclusive," thus showing that said agreement was final and complete and that if there were to be any additional contingencies over and above said sum of $18,000, reserved for that purpose, the defendant was alone liable to pay them.
It follows that the order so far as appealed from should be reversed and the plaintiff's motion for judgment dismissing the counterclaim granted, and the judgment so far as appealed from reversed, with costs, and amended by providing that the motion for dismissal of said counterclaim be granted.
CLARKE, P.J., DOWLING, McAVOY and MARTIN, JJ., concur.
Order so far as appealed from reversed and motion granted; judgment so far as appealed from reversed, with costs, and judgment amended by providing that the motion for dismissal of counterclaim is granted.