Barschi v. Euben , 426 N.Y.S.2d 802 ( 1980 )

In an action for an accounting, plaintiff appeals from (1) an order of the Supreme Court, Queens County, dated September 5, 1978, which, inter alia, denied plaintiff’s motion to set aside the court’s decision after trial as being against the weight of the evidence, and (2) a judgment of the same court, dated September 7, 1978, which dismissed the complaint for failure to establish the existence of a partnership, relegated plaintiff to a plenary action at law regarding any possible claims for sums due, and dismissed defendant’s counterclaims. Appeal from order dated September 5, 1978 dismissed (Matter of Aho, 39 NY2d 241, 248). Judgment affirmed. Defendant is awarded one bill of costs. In our opinion the decision of the trial court dismissing the complaint for failure to establish the existence of a partnership is supported by the record. The inference of the existence of a partnership, which arises from a sharing of the profits of a business, was overcome by ample evidence indicating that plaintiff received his share of the profits in return for services rendered as an employee of the companies (see Partnership Law, § 11, subd 4, par [b]). Mollen, P. J., Gibbons, Martuscello and Weinstein, JJ., concur.