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JOSEPH ROMEO v. PATRICK RUSSO ET AL. (03/03/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


March 3, 1969

JOSEPH ROMEO, APPELLANT,
v.
PATRICK RUSSO ET AL., RESPONDENTS

Appeal from an order of the Supreme Court, Kings County, dated September 4, 1968, which denied plaintiff's motion for a pretrial examination of Philip Rosen as a witness and production of relevant books, etc.

Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.

The examination shall be held at Special Term, Part II, Supreme Court, Kings County, on a day and hour to be specified in a written notice of not less than 10 days or at such other place and time as may be agreed upon by the parties. Defendants admit that plaintiff is a general partner. They do not deny that the witness sought to be examined acted in an accounting capacity for the partnership. It has been sufficiently demonstrated that plaintiff has been denied access to the business books and records of the partnership. Plaintiff as a partner had an equal right to manage and conduct the partnership business (Partnership Law, § 40, subd. 5). He had an absolute right to see and examine the partnership business books (Partnership Law, § 41). It has been sufficiently shown that the witness to be examined has knowledge of pertinent facts and is hostile to plaintiff. Under these circumstances, plaintiff should be allowed to examine the witness and any and all records relating to the partnership in his possession (cf. Matter of Macku, 29 A.D.2d 539).

Disposition

 Order reversed, with $10 costs and disbursements, on the law and the facts, and motion granted.

19690303

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