APPEAL from an order of the Supreme Court at Special Term (ANDERSON, J.), entered April 29, 1953, in Broome County, which denied a motion by defendant for an order dismissing the complaint under rule 106 of the Rules of Civil Practice.
George L. Hinman for appellant.
A. E. Gold and James B. Gitlitz for respondent.
Defendant has appealed to this court from an order of Broome County Supreme Court Special Term denying his motion under rule 106 of the Rules of Civil Practice for the dismissal of the complaint herein as not stating facts sufficient to constitute a cause of action.
These parties entered into a written agreement of partnership on October 1, 1946, and thereafter conducted business as 'Star Instruments Company'. This action involves paragraph (8) of the agreement reading, 'If either party to this agreement shall at any time desire to dissolve such partnership, he shall give notice in writing to the other party hereto of his intention, stating in said notice the sum of money which he is willing to give for the other party's undivided interest in said business and that he is willing to accept the same sum for his undivided interest in said business if the other party so elects. The party receiving such notice shall within ninety days from the date thereof either sell his interest or purchase the interest of the other party at the sum specified in said
notice, and shall notify the party giving such notice of his intention to buy such party's interest or to sell his own, according to the aforesaid option. In case of the failure of the party to whom said notice is given to make his election in writing within ninety days after the service of such notice, then the party giving such notice may elect whether he will sell his interest or purchase that of the partner upon the terms contained in said notice or option given by him. When a determination has been made as above provided the party selling shall convey his interest to the party purchasing upon the payment of said purchase price, and shall thereupon retire from the partnership.'
On December 12, 1952, defendant wrote to plaintiff as follows, 'In accordance with partnership agreement dated October 1, 1946, prepared by Chernin & Gold, Attorneys at Law, I am submitting to you a written notice of intent to dissolve our existing partnership for a cash settlement of $200,000.00, plus 1/2 of the value of accounts receivable at the time of sale and 1/2 of all cash owned by the company on the date of sale. Also in accordance with our partnership agreement, you must notify me within ninety days (90 days) from the above date of your intent.' This letter will be referred to as the 'offer'.
Plaintiff's reply of December 15, 1952, to be referred to as the 'acceptance', reads, 'In accordance with your Notice of December 12, 1952, wherein you refer to the terms of our partnership agreement of October 1st, 1946, I hereby elect to accept your offer to purchase my interest in our partnership business formerly purchased by us from the Star Instruments, Inc., in accordance with the terms of such letter, to wit: 'a cash settlement of $200,000.00, plus 1/2 of the value of accounts receivable at the time of sale and 1/2 of all cash owned by the company on the date of sale.' I will be ready, willing and able to give you a complete Bill of Sale and a sufficient conveyance to you of my interest in the real estate as may be required to effectuate such sale, as of December 31st, 1952, or sooner if you so choose. Such instruments will be delivered to you properly executed by me on such date fixed by you, no later than December 31st, 1952, at the offices of attorneys, Chernin & Gold, of 300 Press Bldg., Binghamton, N.Y. , upon payment by you in accordance with the terms of your offer in your letter of December 12, 1952.'
On December 22, 1952, plaintiff again wrote to defendant, referring to such letter of December 15th and informing him that the legal documents to effectuate the sale were then being
prepared and would be ready in a few days, and adding, 'Therefore, if you want to close this week we can do so, or, if you prefer, we can wait until December 31, the date suggested in my letter. If I do not hear from you, I will assume that it is your intention to close on December 31st ...