Moch v. Schreibersdorf , 117 N.Y.S.2d 654 ( 1952 )

While we find most of the appellants’ contentions untenable, we think that there is merit in the objection to the item of $705 charged as a withdrawal of capital, by the Referee in stating the account, and thus a deduction from the defendants’ distributive share. The $705 represents payments of $15 weekly to the deceased partner in lieu of salary during his last illness. These moneys did not appear to have been a return of capital, but more properly as distribution of income or items of business expense. The surviving partner was drawing $40 a week. The drawings of partners were to have been alike. However, the illness required the hiring of an additional man, and there was an adjustment by allowing the ill partner to draw $15. In any event, as the account is opened with the cash on hand or in bank at the time of the death of the deceased partner, the said balance would presumably have been increased by the $705, if that sum had not been paid to the decedent in his lifetime. Judgment unanimously modified by increasing the defendants’ distributive share to $1,015.28 and, as so modified, affirmed, with costs to the appellants. Settle order on notice. Present — Peek, P. J., Callahan, Yan Yoorhis and Breitel, JJ.