¶1In an action against the executor of a deceased partner of a former partnership to recover salary and commissions under a contract of employment and to recover damages for the breach thereof, the executor appeals from an order granting a motion for a discovery and inspection of the books and records of the former partnership. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion appellant as executor of the deceased partner did not have the books and records of the partnership under his control. Upon the death of a partner the right to specific partnership property vests in the surviving partner. (Partnership Law, § 51, subd. 2, par. [d] ; Josephberg v. Cavallero, 262 App. Div. 1; Williams v. Whedon, 109 N. Y. 333; Murdock v. McCutchen, 154 App. Div. 854.) Moreover, books and records not in possession or control of a party are not subject to a discovery and inspection. (Murdock v. McCutchen, supra.)Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.
2 A.D.2d 889
Goldstein v. Kaye
Appellate Division of the Supreme Court of the State of New York
Decided November 5, 1956
Appellate Division of the Supreme Court of the State of New York · decided 1956-11-05
Relies on Williams v. . Whedon
Good law ✅— No negative treatment on recordhow we know
Decided 1956-11-05
How this case has been cited
Cited by 3 later decisions — most recently November 1981
1 federal appellate · 1 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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